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Digitized  by  the  Internet  Archive 

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http://www.archive.org/details/codeofcivilproceOOpana 


~-: 


2.3 


THE 


CODE  OF  CIVIL  PROCEDURE 


OF   THE 


CANAL  ZONE. 


No. 


v^fO  PAIGE  cv>£ 


,4-. 


WASHINGTON: 
GOVERNMENT   PRINTING   OFFICE. 

1907. 


- 


EXECUTIVE  ORDER. 

— 

Under  authority  vested  in  me  by  law,  it  is 

Ordered,  That  the  within  Code  of  Civil  Procedure  shall  be  in  force 

within  the  Canal  Zone  on  and  after  May  1, 1907. 

Theodore  Roosevelt. 
The  White  House, 

March  22,  1907. 

in 


\ 


TABLE  OF  CONTENTS. 


Title  :  The  Code  of  Civil  Procedure  of  the  Canal   Zone. 

Sections. 

Chapter  1.  General  and  preliminary  provisions 1      to      12 

Chapter  2.  Lawyers,  their  qualifications  and  duties 13  36 

Chapter  3.  Prescription  ;  time  of  commencing  action 37  49 

Chapter  4.  Procedure  in  district  courts 50  81 

Procedure  in  Circuit  Courts  in  Actions. 

Chapter  5.  Pleadings 82  106 

Chapter  G.  Parties  to  actions 107  115 

Chapter  7.  Various  proceedings  in  circuit  courts 116  145 

Chapters.  Abatement 146  172 

Chapter  9.  Special  remedies :  Injunctions,  receivers,  partition  of 
real  estate,  usurpation  of  office  or  franchise,  certiorari  proceed- 
ings, mandate,  prohibition,  contempt,  eminent  domain,  foreclo- 
sure, manual  delivery  of  personal  property. 

Injunctions 173  183 

Receivers 184  191 

Partition  of  real  estate 192  207 

Usurpation  of  office  or  franchise 20S  227 

Certiorari  proceedings 228  232 

Mandate 233  230 

Prohibition 237  241 

Contempt 242  251 

Foreclosure  of  mortgage 252  259 

Manual  delivery  of  personal  property 260  270 

Chapter  10.  To  establish  titles  to  real  property 271  280 

Chapter  11.  Ne  exeat 281  290 

Chapter  12.  Rules  of  evidence,  affidavits,  and  depositions,  per- 
petuation of  testimony : 

Rules  of  evidence 291  363 

Affidavits  and  depositions 364  368 

Depositions 369  392 

Chapter  13.  Venue  of  actions 393 

Chapter  14.  Proceedings  when  judge  is  disqualified  or  disabled 394  395 

Chapter  15.  Witnesses 396  398 

Chapter  16.  Duties  of  the  clerk  of  the  Circuit  Court 399  403 

Chapter  17.  Process : 

Preliminary  process 404        .    416 

Chapter  18.  Subpoenas,  and  compelling  attendance  of  witnesses 417  426 

Chapter  19.  Arrest  of  defendant 427  439 

Chapter  20.  Attachment  of  defendant's  property 440  458 

Chapter  21.  Manner  of  giving  and  entering  judgment 459  464 

Chapter  22.  Execution   465  512 

v 


VI  TABLE    OF    CONTENTS. 

Sections. 

Chapter  23.  Proceedings  supplementary  to  the  execution 513    to     525 

Chapter  24.  Costs  in  the  several  courts 526  532 

Chapter  25.  Proceedings  in  Supreme  Court : 

General  procedure  of  the  Supreme  Court  and  procedure  on 

bills  of  exception 533  549 

Chapter  26.  Proceedings  of  Supreme  Court  in  the  exercise  of  its 

original  jurisdiction 550  556 

Chapter  27.  The  clerk  of  the  Supreme  Court  and  his  duties 557  558 

Chapter  28.  Special  proceedings: 

Power  of  judge  or  court  in  special  proceedings 559 

Chapter  29.  Proceedings  in  habeas  corpus 560  585 

Chapter  30.  Guardians,   their   appointment,   duties,   powers,   and 
accounts : 

Guardians  of  minors 586  593 

Guardians  of  persons  of  unsound  mind 594  617 

Chapter  31.  Trusts,  trustees,  and  proceedings  in  relation  thereto: 

Trusts  and  trustees 618  631 

Chapter  32.  Estates  of  deceased  persons : 

Settlement  of  estates  without  legal  proceedings 632  633 

Chapter  33.  Jurisdiction  over  estates  of  deceased  persons 634  648 

Chapter  34.  Wills  and  the  allowance  thereof,  and  duties  of  execu- 
tors     * 649  683 

Death,  removal,  etc.,  of  executor  or  administrator 684  698 

Chapter  35.  General  duties  of  executors  and  administrators 699  702 

Inventory,  appraisal,  and  account 703  720 

Chapter  36.  Claims  against  estates,  how  allowed 721.  732 

Chapter  37.  Suits  by  and  against  executor  and  administrator 733  737 

Chapter  38.  Property  embezzled  or  secreted,  or  fraudulently  con- 
veyed   1 738  742 

Chapter  39.  Sale  of  estate 743  755 

Chapter  40.  From  what  estate  debts  to  be  paid 756  762 

Chapter  41.  Payment  of  debts 763  774 

Contingent    claims 775  778 

Chapter  42.  Escheats 779  781 

Chapter  43.  Distribution  of  estate 782  793 

Chapter  44.  Adoption  and  custody  of  minors 794  801 

Chapter  45.  Appeals  in  special  proceedings 802  807 

Chapter  46.  Forms  and  fees ' 808 

Fees 809  819 

Chapter  47.  Final  provisions 820  821 


THE  CODE  OF  CIVIL  PROCEDURE  OF  THE  CANAL  ZONE. 


Chapter  I. 

GENERAL   AND   PRELIMINARY   PROVISIONS. 

Section  1.  Interpretation  of  words. — In  the  interpretation  of  this 
Code,  unless  the  context  shows  that  another  sense  was  intended,  the 
word  "  person  "  includes  a  private  corporation ;  "  writing  "  includes 
printing;  "  oath  "  includes  affirmation  or  other  solemn  declaration  in 
such  form  as  the  court  shall  find  to  be  obligatory  upon  the  conscience 
of  the  witness ;  "  of  unsound  mind  "  includes  every  species  of  mental 
deficiency  or  derangement ;  "  bond "  includes  an  undertaking  or 
recognizance ;  "  and  "  may  be  read  "  or  ",  and  "  or  "  read  "  and  ",  if 
the  sense  requires  it ;  "  writ  "  signifies  an  order  or  precept  in  writing 
issued  in  the  name  of  the  Government,  or  of  a  court  or  judicial  officer, 
and  the  word  "  process  "  a  writ  or  summons  issued  in  the  course  of 
judicial  proceedings;  and  "action"  means  an  ordinary  suit  in  a 
court  of  justice,  by  which  one  party  prosecutes  another  for  the  en- 
forcement or  protection  of  a  right,  or  the  redress  or  prevention  of  a 
wrong ;  every  other  remedy  furnished  by  law  is  a  special  proceeding ; 
"  pleadings  "  are  the  formal  allegations  by  the  parties  of  their  respec- 
tive claims  and  defenses,  for  the  judgment  of  the  court;  words  in 
the  present  tense  include  the  future  tense,  and  in  the  masculine  gender 
include  the  feminine  and  neuter  genders;  and  words  in  the  plural 
include  the  singular,  and  in  the  singular  include  the  plural  number; 
the  term  "  dollars  "  means  the  money  of  the  United  States. 

The  phrase  "  territory  of  the  United  States  ",  or  "  territories  of  the 
United  States  ",  includes  any  body  politic  and  any  territorial  posses- 
sion under  the  jurisdiction  of  the  United  States. 

The  word  "  surety  "  or  "  sureties,"  when  occurring  in  this  Code, 
shall  include  any  surety  company  authorized  to  do  business  under  the 
laws  of  the  Canal  Zone,  and  the  single  bond  of  such  surety  company 
shall  in  all  cases  be  deemed  sufficient. 

"  District  judge  "  shall  mean  any  judge  appointed  for  any  of  the 
existing  administrative  districts,  under  whatsoever  title  known. 

But  this  enumeration  shall  not  be  construed  to  require  a  strict  fon- 
struction  of  other  general  words. 

3 


4  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  2.  Construction  of  Code. — The  provisions  of  this  Code,  and 
the  proceedings  under  it,  shall  be  liberally  construed,  in  order  to  pro- 
mote its  object  and  assist  the  parties  in  obtaining  speedy  justice. 

Sec  3.  Powers  of  deputies. — The  duty  enjoined  by  statute  upon  a 
ministerial  officer,  and  an  act  permitted  to  be  done  by  him,  may  be 
performed  by  his  lawful  deputy. 

Sec.  4.  How  time  computed. — Unless  otherwise  specially  provided, 
the  time  within  which  an  act  is  required  by  law  to  be  done  shall  be 
computed  by  excluding  the  first  day  and  including  the  last;  and  if 
the  last  be  Sunday  or  a  legal  holiday  it  shall  be  excluded. 

Sec.  5.  Provisions  concerning  process. — Process  shall  be  under  the 
seal  of  the  court  from  which  it  issues,  be  styled  "  The  United  States 
of  America,  Canal  Zone,  ss :  "  to  be  signed  by  the  clerk  and  bear  date 
the  day  it  actually  issues. 

Sec.  6.  Rules  of  Court. — The  judges  of  the  Supreme  Court  shall 
prepare  rules  regulating  the  conduct  of  business  in  the  Supreme 
Court  and  in  the  Circuit  Courts.  The  rules  shall  be  uniform  for  all 
Circuit  Courts  throughout  the  Canal  Zone.  Such  rules,  when  duly 
made  and  promulgated  and  not  in  conflict  with  the  laws  of  the  United 
States  or  the  Canal  Zone,  shall  be  binding  and  must  be  observed,  but 
no  judgment  shall  be  reversed  by  reason  of  a  failure  of  the  court  to 
comply  with  such  rules  unless  the  substantial  rights  of  a  party  have 
been  impaired  by  such  failure. 

Sec.  7.  Stamped  paper. — Stamped  paper  is  not  required  for  use 
in  proceedings  in  any  court.  But,  for  uniformity  and  convenience 
of  folding  and  filing  papers,  the  rules  of  court  may  prescribe  the 
size  and  form  of  sheets  of  paper  to  be  used  for  all  written  and  printed 
documents  in  legal  proceedings. 

Sec.  8.  Disqualification  of  judges. — No  judge,  magistrate,  referee, 
or  presiding  officer  of  any  tribunal  shall  sit  in  any  case  or  proceeding 
in  which  he  is  pecuniarily  interested,  or  related  to  either  party  within 
the  sixth  degree  of  consanguinity  or  affinity,  computed  according  to 
the  rules  of  the  civil  law,  nor  in  which  nor  in  the  matter  out  of 
which  the  litigation  arises  he  has  been  a  counsel,  nor  in  which  he  has 
presided  in  any  inferior  judicature  when  his  ruling  or  decision  is  the 
subject  of  review,  without  the  written  consent  of  all  parties  in  inter- 
est, signed  by  them  and  entered  upon  the  record. 

No  challenge  as  to  the  competency  of  any  of  the  officials  named  in 
this  section  shall  be  received  or  allowed;  but  if  it  be  claimed  that 
the  official  is  disqualified  by  the  provisions  of  this  section,  the  party 
objecting  to  his  competency  may,  in  writing,  file  with  the  official  his 
objection,  stating  the  grounds  therefor,  and  the  official  shall  there- 
upon proceed  with  the  trial,  or  withdraw  therefrom,  in  accordance 
with  his  determination  of  the  question  of  his  disqualification.  His 
decision  shall  be  forthwith  made  in  writing  and  filed  with  the  other 


CODE    OF    CIVIL,   PROCEDURE    OF    THE    CANAL   ZONE.  5 

papers  in  the  case,  but  no  appeal  or  stay  of  action  shall  be  allowed 
from,  or  by  reason  of,  his  decision  in  favor  of  his  own  competency, 
until  after  final  judgment  in  his  court. 

Sec.  9.  Civil  liability  of  judges.- — No  judge,  shall  be  liable  to  a  civil 
action  for  the  recovery  of  damages  by  reason  of  any  judicial  action 
or  judgment  rendered  by  him  in  good  faith,  and  within  the  limits 
of  his  legal  powers  and  jurisdiction. 

Sec.  10.  Publicity  of  proceedings  and  records. — The  sitting  of 
every  court  of  justice  shall  be  public,  but  any  court  may,  in  its  dis- 
cretion, exclude  the  public  when  the  testimony  to  be  adduced  is  of 
so  indecent  a  nature  as  to  require  such  exclusion  in  the  interests  of 
morality.  The  records  of  every  court  of  justice  shall  be  public 
records  and  available  for  the  inspection  of  any  party  in  interest,  at 
all  proper  business  hours,  under  the  supervision  of  the  clerk  having 
the  custody  of  such  records. 

Sec  11.  Incidental  powers  of  courts. — Every  court  shall  have 
power : 

1.  To  preserve  and  enforce  order  in  its  immediate  presence; 

2.  To  enforce  order  in  proceedings  before  it,  or  before  a  person  or 
persons  empowered  to  conduct  a  judicial  investigation  under  its 
authority ; 

3.  To  compel  obedience  to  its  judgments,  orders,  and  process,  and 
to  the  lawful  orders  of  a  judge  out  of  court  in  a  pending  action  or 
proceeding ; 

4.  To  control,  in  furtherance  of  justice,  the  conduct  of  its  minis- 
terial officers,  and  of  all  other  persons  in  any  manner  connected  with 
a  judicial  proceeding  before  it,  in  every  matter  appertaining  thereto; 

5.  To  compel  the  attendance  of  persons  to  testify  in  an  action  or 
proceeding  pending  therein; 

6.  To  administer  or  cause  to  be  administered  oaths  in  an  action  or 
proceeding  pending  therein,  and  in  all  other  cases  where  in  the  exer- 
cise of  its  powers  it  may  be  necessary ; 

7.  To  amend  and  control  its  process  and  orders  so  as  to  make  them 
conformable  to  law  and  justice; 

8.  To  appoint  a  clerk  temporarily  should  there  be  a  vacancy  in  said 
office  or  should  the  clerk  for  any  cause  be  unable  to  attend  to  his 
duties. 

Sec  12.  Official  language. — The  official  language  of  all  courts  and 
their  records  shall  be  the  English  language.  But  the  Supreme  Court, 
or  any  Circuit  Court,  may  order  a  duplicate  record  in  the  Spanish 
language  to  be  made  and  duly  enrolled  in  any  action  or  proceeding, 
whenever  the  court  shall  determine  that  such  duplicate  record  would 
promote  the  public  convenience  and  the  interests  of  the. parties. 

Provided,  That  any  party  or  his  counsel  may  examine  or  cross- 
examine  witnesses,  or  make  an  oral  argument  in  Spanish,  the  same 


6  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

to  be  clearly  interpreted  into  English  by  a  court  interpreter;  and  a 
party  or  his  counsel  may  submit  a  written  or  printed  pleading  or 
brief  in  Spanish,  if  at  the  same  time  he  accompany  it  by  a  correct 
English  translation. 

Chapter  II. 

LAWYERS,    THEIR    QUALIFICATIONS    AND    DUTIES. 

Sec  13.  Who  may  practice  as  lawyers. — The  following  persons,  if 
not  specially  declared  ineligible,  are  entitled  to  practice  law  in 
the  courts  of  the  Canal  Zone.  All  attorneys  at  law  who  were  per- 
mitted to  practice  their  profession  within  the  territory  of  which 
the  Canal  Zone  is  constituted  on  or  before  the  23rd  day  of  Feb- 
ruary, 1904,  will  be  entitled  to  practice  before  the  Canal  Zone  courts 
upon  presenting  evidence  of  this  fact. 

Sec  14.  Qualification  of  applicants. — Other  persons  who  desire  to 
be  admitted  to  the  practice,  will  appear  before  the  Supreme  Court, 
producing  a  certificate  of  good  moral  character,  and  be  examined 
touching  their  qualifications  to  practice  law.  The  subjects  upon 
which  they  are  examined  will  be  Real  Estate,  Personal  Property, 
Equity,  Pleading,  Contracts,  Administrators  and  Executors,  Crimi- 
nal Law,  and  the  Codes  in  force  in  the  Canal  Zone. 

If  in  the  opinion  of  the  court  they  exhibit  a  sufficient  acquaintance 
with  the  subjects  upon  which  examined  to  enable  them  to  practice 
their  profession  with  efficiency  a  license  to  so  practice  will  be  issued 
to  them. 

Sec  15.  Study  of  law. — The  Supreme  Court  by  rule  may  require 
that  applicants  shall  have  regularly  and  attentively  studied  law  for  a 
fixed  period  before  taking  the  examination,  and  may  specify  the 
kind  of  evidence  necessary  to  establish  the  fact. 

Sec  16.  Place  and  manner  of  examinations. — Such  examinations 
shall  be  conducted  by  the  judges  of  the  Supreme  Court  or  by  a  com- 
mittee of  competent  lawyers  by  them  to  be  appointed,  and  shall  be 
held  at  such  times  as  the  judges  of  that  court  shall  provide  by 
general  or  special  rules. 

Sec  17.  Admission. — If  upon  examination,  the  candidate  is  found 
qualified,  the  Supreme  Court  shall  admit  him  as  a  member  of  the  bar 
for  all  the  Courts  of  the  Canal  Zone,  and  shall  direct  an  order  to  be 
entered  to  that  effect  upon  its  records,  and  a  certificate  of  such  record 
to  be  given  to  him  by  the  clerk  of  the  court,  which  certificate  shall 
be  his  license. 

Sec  18.  Oaths. — Before  receiving  a  certificate  the  applicant  shall 
take  and  subscribe  in  court  the  following  oath: 

1.  "I, recognize  and  accept  the  supreme  authority  of 

the  United  States  of  America,  in  the  Canal  Zone,  and  I  do  swear  that 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  i 

I  will  obey  the  existing-  laws  which  rule  in  the  Canal  Zone,  as  well 
as  the  legal  orders  and  decrees  of  the  duly  constituted  authorities 
therein ;  that  I  impose  upon  myself  this  voluntary  obligation  without 
any  mental  reservation  or  purpose  of  evasion.     So  help  me  God. 

2.  "  I  do  solemnly  swear  that  I  will  do  no  fasehood,  nor  consent  to 
the  doing  of  any  in  court;  I  will  not  wittingly  or  willingly  promote  or 
sue  any  false,  groundless  or  unlawful  suit,  nor  give  aid  nor  consent 
to  the  same;  I  will  delay  no  man  for  money  or  malice,  but  will  con- 
duct myself  in  the  office  of  a  lawyer  writhin  the  courts  according  to 
the  best  of  my  knowledge  and  discretion,  with  all  good  fidelity  as 
well  to  the  courts  as  to  my  clients.     So  help  me  God." 

These  oaths  may  be  taken  before  any  judge  of  the  Supreme  Court, 
and  a  certificate  that  the  oath  has  been  taken  shall  be  set  forth  in  the 
license. 

Sec  19.  Admission  from  other  jurisdictions. — Every  resident  of 
the  Isthmus  of  Panama,  not  a  citizen  or  subject  of  any  foreign  govern- 
ment, who  has  been  admitted  to  practice  law  in  the  Supreme  Court 
of  the  United  States,  or  in  any  circuit  court  of  appeals,  circuit  or 
district  court  therein,  or  in  the  highest  court  of  any  State  or  Territory 
of  the  United  States,  may  be  admitted  to  practice  in  the  courts  of  the 
Canal  Zone  upon  the  production  of  his  license  and  satisfactory  evi- 
dence that  such  license  has  not  been  revoked  and  that  the  applicant 
is  of  good  moral  character  and  professional  standing.  But  the 
judges  of  the  Supreme  Court  may,  by  general  rules,  provide  that  an 
applicant  for  admission  under  this  section  shall  satisfactorily  pass 
an  examination  upon  the  codes  of  law,  and  procedure  in  force  in  the 
Canal  Zone. 

The  applicant  under  this  section  shall  take  the  oath  above  provided 
before  receiving  his  license. 

Sec.  20.  Lawyer's  roll. — The  clerk  of  the  Supreme  Court  shall 
keep  a  roll  of  all  the  lawyers  admitted  to  practice  in  the  court,  which 
roll  shall  be  signed  by  the  person  admitted  before  he  receives  his 
license. 

Sec  21.  Disbarments. — A  member  of  the  bar  may  be  removed  or 
suspended  from  his  office  as  lawyer  by  the  Supreme  Court  for  any 
deceit,  malpractice  or  other  gross  misconduct  in  such  office,  or  by 
reason  of  his  conviction  of  a  crime  involving  moral  turpitude  or 
for  any  violation  of  either  of  the  oaths  aforesaid,  or  for  the  willful 
disobedience  of  any  lawful  order  of  the  Supreme  Court  or  Circuit 
Courts,  or  for  corruptly  or  willfully  appearing  as  a  lawyer  for  a 
party  to  an  action  or  proceeding  without  authority  so  to  do. 

Sec.  22.  Suspension  of  lawyers. — Circuit  Courts  may  suspend  a 
lawyer  from  the  further  practice  of  his  profession  for  unprofessional 
conduct  in  any  case,  or  for  conduct  in  the  presence  of  the  Court  calcu- 
lated to  bring  the  administration  of  justice  into  derision  or  contempt. 
Should  such  suspension  occur  in  the  trial  of  a  case,  the  party  to  said 


8  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONK. 

action,  represented  b}*'  the  lawyer  so  suspended,  shall  be  entitled  to 
have  said  case  continued  until  such  suspension  is  removed,  or  until 
such  time  as  he  may  be  reasonably  able  to  secure  another  lawyer,  and 
shall  have  the  right  on  such  new  hearing  to  have  the  case  tried  de 
novo. 

After  such  suspension  such  lawyer  will  not  be  privileged  to  prac- 
tice his  profession  in  any  of  the  courts  of  the  Canal  Zone  until 
further  action  of  the  Supreme  Court  in  the  premises. 

Sec.  23.  Proceedings  upon  suspension. — Upon  such  suspension,  the 
judge  of  the  Circuit  Court  ordering  the  suspension  shall  forthwith 
transmit  to  the  Supreme  Court  a  certified  copy  of  the  order  of  sus- 
pension and  a  full  statement  of  the  facts  upon  which  the  same  was 
based.  Upon  receipt  of  such  certified  copy  and  statement,  the 
Supreme  Court  shall  make  full  investigation  of  the  facts  involved 
and  make  such  order  revoking  or  extending  the  suspension,  or  remov- 
ing the  lawyer  permanently  from  the  roll,  as  it  shall  find  the  facts 
to  warrant. 

Sec  24.  Institution  and  costs  of  disbarment  proceedings. — Pro- 
ceedings for  the  removal  or  suspension  of  a  lawyer  may  be  taken  by 
the  court  of  its  own  motion,  or  upon  the  complaint  of  another  in 
writing.  It  shall  be  the  duty  of  the  Prosecuting  Attorney  for  the 
Canal  Zone  to  appear  for  the  Government  in  all  such  proceedings  in 
the  Supreme  Court  and  to  conduct  prosecutions.  The  costs  of  the 
prosecution  of  such  proceedings  shall  be  paid  by  the  Government. 

Sec.  25.  Hearing  of  charges. — No  lawyer  shall  be  removed  from 
the  roll  or  be  suspended  from  the  performance  of  his  profession  until 
he  has  had  full  opportunity  to  answer  the  charges  against  him,  and 
to  produce  witnesses  in  his  own  behalf  and  to  be  heard  by  himself 
and  counsel,  if  he  so  desires,  upon  reasonable  notice.  But  if  upon 
reasonable  notice  the  accused  fails  to  appear  and  answer  the  accusa- 
tion, the  court  may  proceed  to  determine  the  matter  ex  parte. 

Sec  2G.  Authority  to  appear. — No  written  power  of  attorney  shall 
be  required  to  authorize  a  duly  enrolled  lawyer  to  appear  in  court 
for  hi^  client,  but  the  presiding  judge  may,  on  motion  of  either  party, 
and  on  reasonable  grounds  therefor  being  shown,  require  any  lawyer 
who  assumes  the  right  to  appear  in  an  action  or  proceeding  to  pro- 
duce or  prove  the  authority  under  which  he  appears,  and  to  disclose, 
whenever  pertinent  to  any  issue,  the  name  of  the  person  who  em- 
ployed him,  and  may  make  any  order  that  justice  may  require  on 
such  investigation;  but,  prima  facie,  lawyers  shall  be  held  properly 
authorized  to  represent  any  causes  they  may  appear  in. 

Sec  27.  Authority  to  bind  their  clients. — Lawyers  have  authority 
to  bind  their  clients  in  any  action  or  proceeding  by  any  agreement 
in  relation  to  the  cause  made  in  writing,  in  entering  appeals,  and 
in  all  matters  of  ordinary  judicial  procedure.    But  they  can  not,  with- 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  9 

out  special  authority,  compromise  their  client's  litigation,  or  receive 
anything  in  discharge  of  a  client's  claim  but  the  full  amount  in 
cash. 

Sec.  28.  Unauthorized  appearances;  contempt. — A  lawyer  will- 
fully appearing  in  court  for  a  person  without  being  employed,  unless 
by  leave  of  the  court,  is  guilty  of  contempt  of  court,  and  may  be 
fined  a  sum  of  not  less  than  one  hundred  dollars  and  not  more  than 
one  thousand  dollars  by  the  court  in  which  such  unauthorized  ap- 
pearance has  been  entered. 

Sec.  29.  Lawyers'  fees. — A  lawyer  shall  be  entitled  to  have  and 
recover  from  his  client  no  more  than  a  reasonable  compensation  for 
the  services  rendered,  having  in  view  the  importance  of  the  sub- 
ject-matter of  the  controversy,  the  extent  of  the  services  rendered, 
and  the  professional  standing  of  the  lawyer.  But  in  such  cases  the 
court  shall  not  be  bound  by  the  opinion  of  lawyers  as  expert  wit- 
nesses as  to  the  proper  compensation,  but  may  disregard  such  testi- 
mony and  base  its  conclusion  on  its  own  professional  knowledge.  A 
written  contract  for  services  shall  control  the  amount  of  recovery 
if  found  by  the  court  not  to  be  unconscionable  or  unreasonable. 

Sec.  30.  Retention,  of  client's  funds. — When  a  lawyer  unjustly 
retains  in  his  hands  money  of  his  clients  after  it  has  been  demanded, 
he  may  be  dealt  with  as  for  contempt  of  court,  and  may,  after  due 
hearing,  be  imprisoned  until  he  pays  over  his  client's  moneys  ascer- 
tained to  be  unlawfully  in  his  hands,  for  a  period  not  exceeding 
six  months  in  all.  But  proceedings  under  this  section  shall  not  be  a 
bar  to  a  criminal  prosecution  for  embezzlement. 

Sec.  31.  Inviolability  of  communications  of  clients. — A  lawyer 
must  strictly  maintain  inviolate  the  confidence  and  preserve  the 
secrets  of  his  client.  He  shall  not  be  permitted  in  any  court,  without 
the  consent  of  his  client,  given  in  open  court,  to  testify  to  any  facts 
imparted  to  him  by  his  client  in  professional  consultation,  or  for  the 
purpose  of  obtaining  advice  upon  legal  matters. 

Sec.  32.  Change  of  lawyers. — A  lawyer  may  retire  at  any  time 
from  any  action  or  special  proceeding,  by  the  written  consent  of  his 
client  filed  in  court,  and  a  client  may  at  any  time  dismiss  his  lawyer 
or  substitute  another  in  his  place.  A  lawyer  may  also  retire  at  any 
time  from  an  action  or  special  proceeding,  without  the  consent  of  his 
client,  should  the  court,  on  notice  to  the  client  and  lawyer,  and  on 
hearing,  determine  that  he  ought  to  be  allowed  to  retire.  In  case  of 
such  substitution,  the  name  of  the  lawyer  newly  employed  shall  be 
entered  on  the  docket  of  the  court  in  place  of  the  former  one,  and 
written  notice  of  the  change  shall  be  given  to  the  adverse  party. 

Sec.  33.  Employment  of  lawyers  not  required. — Any  party  may 
conduct  his  litigation  in  a  court  of  a  district  judge,  in  person  or 
with  the  aid  of  an  agent  or  friend  appointed  by  him  for  that  pur- 


10  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

pose,  or  with  the  aid  of  a  lawyer;  in  any  other  court  a  party  may 
conduct  his  litigation  personally  or  by  the  aid  of  a  lawyer,  and  his 
appearance  must  be  either  personal  or  by  the  aid  of  a  duly  authorized 
member  of  the  bar. 

Sec.  34.  Lawyers  for  destitute  litigants. — The  Supreme  Court  and 
Circuit  Courts  may,  in  their  discretion,  assign  any  lawyer  to  render 
professional  aid  to  a  party,  in  pending  action,  free  of  charge,  if 
such  court,  upon  full  investigation  shall  find  that  the  party  is  des- 
titute and  unable  to  employ  a  lawyer  and  that  the  services  of  counsel 
are  necessary  to  secure  the  ends  of  justice  and  to  protect  the  rights 
of  the  party.  Upon  such  assignment,  it  shall  be  the  duty  of  the 
lawyer  assigned  to  render  the  required  services,  unless  he  shall  be 
excused  therefrom  b}'  the  court  for  sufficient  cause  shown. 

Sec.  35.  Judges  as  lawyers. — No  judge  of  the  Supreme  Court  or 
Circuit  Court,  or  clerk  of  court  nor  the  prosecuting  attorney  or  as- 
sistant prosecuting  attorney  shall  be  allowed  to  act  as  a  lawyer  or  to 
give  professional  advice  to  clients  while  holding  office. 

Sec.  36.  Lawyers'1  liens. — A  lawyer  shall  have  a  lien  upon  all  the 
funds  and  papers  and  documents  of  his  client  which  may  lawfully 
have  come  into  his  possession,  and  may  retain  the  same  until  his 
lawful  fees  and  disbursements  due  to  him  from  his  client  have  been 
paid,  and  may  apply  such  funds  to  the  satisfaction  thereof.  He  shall 
also  have  a  lien  to  the  same  extent  upon  all  judgments  and  decrees 
for  the  payment  of  money,  and  executions  issued  in  pursuance  of 
such  judgments  and  decrees  which  he  has  secured  in  a  litigation  of 
his  client,  from  and  after,  but  not  before,  the  time  when  he  shall 
have  caused  a  statement  of  his  claim  of  such  lien  to  be  entered  upon 
the  records  of  the  court  rendering  such  judgment  or  decree,  or  issuing 
such  execution,  and  shall  have  caused  written  notice  thereof  to  be 
delivered  to  the  adverse  party,  and  shall  have  the  same  right  and 
power  over  such  judgments,  decrees,  and  executions  to  enforce  his 
lien  as  his  client  had  or  may  have,  to  the  extent  that  may  be  neces- 
sary for  the  payment  of  his  just  fees  and  disbursements. 

Chapter  III. 

PRESCRIPTION  ;    TIME    OF    COMMENCING    ACTION. 

Sec.  37.  To  what  this  chapter  does  not  apply. — This  chapter  shall 
not  apply  to  actions  already  commenced,  or  to  cases  wherein  the  right 
of  action  has  already  accrued;  but  the  statutes  in  force  when  the 
action  or  right  of  action  accrued  shall  be  applicable  to  such  cases 
according  to  the  subject  of  the  action  and  without  regard  to  the 
form;   nor  shall  this  chapter  apply  in  the  case  of  a  continuing  and 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  11 

subsisting  trust,  nor  to  an  action  by  the  vendee  of  real  property 
in  possession  thereof  to  obtain  the  conveyance  of  it. 

Sec  38.  Special  limitations  excepted. — Civil  actions  can  only  be 
commenced  within  the  periods  prescribed  in  this  chapter  after  the 
cause  of  action  accrues;  but  where  a  different  limitation  is  pre- 
scribed by  this  Code,  that  shall  govern. 

Sec  39.  Period  of  prescription  as  to  real  estate. — Except  in  the 
case  of  the  Government  of  the  United  States  or  the  Canal  Zone  an 
action  for  recovery  of  title  to,  or  possession  of,  real  property,  or  an 
interest  therein,  can  only  be  brought  within  ten  years  after  the  cause 
of  such  action  accrues. 

Sec  40.  Title  to  land  by  prescription. — Ten  years'  actual  adverse 
possession  by  any  person  claiming  to  be  the  owner  for  that  time  of 
any  land  or  interest  in  land,  uninterruptedly  continued  for  ten  years 
by  occupancy,  descent,  grants,  or  otherwise,  in  whatever  way  such 
occupancy  may  have  commenced  or  continued,  except  in  the  case  of 
public  lands,  shall  vest  in  every  actual  occupant  or  possessor  of  such 
land  a  full  and  complete  title,  saving  to  the  persons  under  disabilities 
the. rights  secured  by  the  next  section.  In  order  to  constitute  such 
title  by  prescription  or  adverse  possession,  the  possession  by  the 
claimant  or  by  the  person  under  or  through  whom  he  claims  must 
have  been  actual,  open,  public,  continuous,  under  a  claim  of  title 
exclusive  of  any  other  right  and  adverse  to  all  other  claimants.  But 
failure  to  occupy  or  cultivate  land  solely  by  reason  of  war  shall  not 
be  deemed  to  constitute  an  interruption  of  possession  of  the  claimant, 
and  his  title  by  prescription  shall  be  complete,  if  in  other  respects 
perfect,  notwithstanding  such  failure  to  occupy  or  cultivate  the  land 
during  the  continuance  of  war. 

Sec  41.  Exceptions  in  favor  of  persons  under  disability. — If  a  per- 
son entitled  to  bring  the  action  mentioned  in  the  preceding  sections 
in  this  chapter  is,  at  the  time  the  cause  of  action  accrues,  within  the 
age  of  minority,  of  unsound  mind  or  in  prison,  such  person  may,  after 
the  expiration  of  ten  years  from  the  time  the  cause  of  action  accrues, 
bring  such  action  within  three  years  after  such  disability  is  re- 
moved. 

Sec  42.  Other  civil  actions;  how  limited. — Civil  actions  other  than 
for  the  recovery  of  real  property  can  only  be  brought  within  the  fol- 
lowing periods  after  the  right  of  action  accrues: 

1.  Within  ten  years:  An  action  upon  an  agreement,  contract,  or 
promise  in  writing,  or  upon  the  judgment  or  decree  of  a  court; 

2.  Within  five  years :  An  action  upon  a  contract  not  in  writing, 
whether  such  contract  is  expressed  or  implied,  and  an  action  upon  a 
liability  created  by  a  statute  other  than  a  forfeiture  or  penalty ; 

3.  Within  two  years:  All  actions  for  an  injury  to  or  trespass  upon 
real  estate;  for  the  recovery  of  personal  property;  for  the  recovery 


12  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

of  damages  for  taking,  retaining  or  injuring  personal  property; 
for  an  injury  to  the  rights  of  the  plaintiff  not  arising  on  contract 
and  not  hereinafter  enumerated;  for  relief  on  the  ground  of  fraud; 
shall  be  commenced  within  two  years  next  after  the  cause  of  action 
accrued,  except  that  in  action  for  relief  on  the  ground  of  fraud,  the 
right  of  action  in  such  cause  shall  not  be  deemed  to  have  accrued 
until  the  disco veiy  of  the  fraud. 

4.  Within  one  year:  Action  for  injury  to  the  person;  action  for 
libel  or  slander;  for  assault,  battery,  malicious  prosecution  or  false 
imprisonment,  or  for  injuries  resulting  therefrom;  action  upon  a 
statute  for  a  penalty  or  forfeiture;  shall  be  brought  within  one  year 
after  the  cause  of  action  accrued,  but  where  a  different  limitation  is 
prescribed  in  the  statute  by  which  the  remedy  is  given  the  action 
must  be  brought  within  the  period  so  limited. 

Sec.  43.  For  other  relief. — An  action  for  relief  not  herein  provided 
for  can  only  be  brought  within  ten  years  after  the  cause  of  action 
accrues. 

Sec  44.  Rights  saved  to  certain  persons. — If  a  person  entitled  to 
bring  any  action  mentioned  in  either  of  the  two  last  preceding  sec- 
tions is,  at  the  time  the  cause  of  action  accrues,  within  the  age  of 
minorit}',  of  unsound  mind,  or  in  prison,  such  person  may  bring  such 
action  within  two  years  after  the  disability  is  removed  unless  the 
right  of  action  is  one  of  those  named  in  subdivision  four  of  section 
forty-two,  in  which  case  it  may  be  brought  within  one  j-ear  after  such 
disabilky  is  removed. 

Sec  45.  When  action  deemed  commenced. — An  action  shall  be 
deemed  commenced  within  the  meaning  of  this  chapter,  as  to  each 
defendant,  at  the  date  of  the  filing  of  the  complaint  in  court,  but  if 
an  additional  defendant  is  made  after  the  commencement  of  the 
action,  the  action  shall  be  deemed  commenced  within  the  meaning  of 
this  chapter,  as  to  such  defendant,  at  the  date  of  the  summons  which 
is  served  on  him. 

Sec  46.  As  to  absent  persons. — If,  when  a  cause  of  action  accrues 
against  a  person,  he  is  out  of  the  Canal  Zone,  or  has  absconded  or 
concealed  himself,  and  has  not  known  or  visible  property  within  the 
Canal  Zone,  the  period  limited  for  the  commencement  of  the  action 
shall  not  begin  to  run  until  he  comes  into  the  Canal  Zone  or  while  he 
is  so  absconded  or  concealed,  or  until  he  has  known  or  visible  prop- 
erty within  the  Zone;  and  if,  after  the  cause  of  action  accrues,  he 
departs  from  the  Canal  Zone,  or  absconds  or  conceals  himself,  the 
time  of  his  absence  or  concealment  shall  not  be  computed  as  any  part 
of  the  period  within  which  time  the  cause  of  action  should  be 
brought. 

Sec  47.  //'  bailed  at  place  where  cause  of  action  arose,  barred 


CODE    OF    CIVIL    PROCEDURE    OP    THE    CANAL   ZONE.  13 

fore. — If,  by  the  laws  of  the  state  or  country  where  the  cause  of 
action  arose,  the  action  is  barred,  it  is  also  barred  in  the  Canal  Zone. 

Sec.  48.  Saving  in  other  cases. — If,  in  an  action  commenced,  or 
attempted  to  be  commenced,  in  due  time,  a  judgment  for  the  plaintiff 
be  reversed,  or  if  the  plaintiff  fail  otherwise  than  upon  the  merits, 
and  the  time  limited  for  the  commencement  of  such  action  has,  at  the 
date  of  such  reversal  or  failure,  expired,  the  plaintiff,  or,  if  he  die 
and  the  cause  of  action  survive,  his  representatives  may  commence  a 
new  action  within  one  year  after  such  date,  and  this  provision  shall 
apply  to  any  claim  asserted  in  any  pleading  by  a  defendant. 

Sec.  49.  What  shall  renew  right  of  action. — When  payment  has 
been  made  upon  any  demand  founded  upon  contract,  or  a  written 
acknowledgment  thereof  or  a  promise  to  pay  the  same  has  been  made 
and  signed  by  the  party  sought  to  be  charged,  an  action  may  be 
brought  thereon  within  the  time  herein  limited,  after  such  payment, 
acknowledgment,  or  promise. 

Chapter  IV. 

PROCEDURE   IN    DISTRICT   COURTS. 

Sec.  50.  Summons. — Every  action  before  a  district  judge,  ex- 
cept as  otherwise  provided,  shall  be  commenced  by  summons,  which 
shall  be  in  the  following  form,  as  nearly  as  the  case  will  admit,  viz : 

"  United  States  or  America, 

"  Canal  Zone,  ss: 

"  The  Government  of  the  Canal  Zone,  to  any  marshal  of  said 
Canal  Zone,  greeting: 

"  You  are  hereby  commanded  to  summon  A.  B.  to  appear  before 

me  at on  the day  of at o'clock  —  M, 

to  answer  the  complaint  of  C.  D.  for  a  failure  to  pay  him  a  certain 
demand,  not  exceeding  one  hundred  dollars,  and  hereof  make  due 
return,  as  the  law  directs. 

"  Given  under  my  hand  this day  of 19__. 


"District  Judge." 
In  which  summons  the  district  judge  shall  specif}7  a  certain 
place,  day  and  hour  which  shall  be  between  the  hours  of  eight  o'clock 
a.  m.  and  4  o'clock  p.  m.  for  the  trial,  not  less  than  five  nor  more 
than  fifteen  days  from  the  date  of  such  summons,  at  which  time  and 
place  the  defendant  is  to  appear.  Every  summons  shall  be  served 
at  least  three  days  before  the  time  of  trial  mentioned  therein,  by 
reading  the  same  to  the  defendant. 

Sec.  51.  The  complai?it. — The  complaint  shall  state  the  name  and 
residence  of  the  plaintiff  and  that  of  the  defendant,  the  substance 
of  the  claim  made,  the  grounds  of  action,  the  amount  sought  to  be 
recovered,  and  the  date  when  the  claim  is  presented  to  the  court. 

803a—  07— m 2* 


1  4  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  52.  Nonsuit. — If  the  plaintiff  does  not  appear  at  the  time  and 
place  designated  in  the  summons,  the  judge  may  dismiss  the  action 
for  failure  to  prosecute,  and  render  judgment  for  the  defendant  to 
recover  his  lawful  costs.  But  such  dismissal  without  hearing  shall 
not  be  a  bar  to  a  subsequent  action  for  the  same  cause. 

Sec  53.  Default. — If  the  defendant  does  not  appear  at  the  time 
and  place  designated  in  the  summons,  judgment  may  be  rendered 
against  him  by  default,  and  the  court  shall  thereupon  proceed  to 
hear  the  testimony  of  the  plaintiff  and  his  witnesses  as  to  the  amount 
which  the  plaintiff  is  entitled  to  recover,  and  shall  render  judgment 
for  the  plaintiff  to  recover  of  the  defendant  such  sum  as  he  finds 
established  by  the  evidence  to  be  justly  due  with  lawful  costs;  but 
in  all  actions  for  the  recovery  of  money  under  a  contract,  express  or 
implied,  where  the  cause  of  action  is  set  forth  in  a  complaint  verified 
by  the  plaintiff,  judgment  by  default  for  the  amount  sued  for  may 
be  entered  without  taking  the  testimony  of  the  plaintiff  and  his 
witnesses. 

Sec  54.  Vacating  nonsuits  and  defaults. — Within  two  hours  after 
the  entry  of  a  nonsuit  or  default  as  provided  in  the  last  two  preced- 
ing sections,  the  court  may  strike  off  the  entry  of  nonsuit  or  default 
and  allow  the  party  nonsuited  or  defaulted  to  have  a  trial  upon  the 
merits  of  the  cause,  if  such  party  shall  appear  and  make  it  manifest 
to  the  court  that  his  failure  to  appear  at  the  time  designated  occurred 
by  reason  of  fraud,  accident,  or  mistake. 

Sec  55.  Trial. — The  defendant  may  interpose  any  lawful  defense, 
including  a  counterclaim  or  plea  in  offset,  for  any  sum  not  exceeding 
the  jurisdictional  limit  of  a  district  court,  verbally,  without  written 
pleadings.  The  plaintiff  may  make  an  opening  statement  by  himself, 
his  agent  or  counsel,  if  he  so  desires,  explaining  the  character  of  his 
claim,  and  the  defendant,  personally  or  by  his  agent  or  counsel,  may 
make  a  like  opening  statement,  if  he  so  desires,  explaining  the  charac- 
ter of  his  defense  or  counterclaim.  Upon  the  conclusion  of  the  open- 
ing statement,  the  court  shall  hear  the  testimony  of  the  plaintiff  and 
his  witnesses ;  afterwards,  the  testimony  of  the  defendant  and  his  wit- 
nesses, all  under  the  sanction  of  an  oath.  Upon  the  conclusion  of 
the  testimony  in  behalf  of  the  defendant,  the  plaintiff  may  offer  re- 
butting testimony.  When  the  testimony  has  been  closed,  the  de- 
fendant or  his  agent  or  counsel  shall  be  heard  in  argument,  if  he  so 
desires,  and  upon  the  conclusion  of  his  argument  the  plaintiff  or  his 
agent  or  counsel  shall  be  heard,  if  he  so  desires. 

Sec  56.  Testimony. — All  testimony,  except  documentary,  shall  be 
given  orally  in  court,  at  the  time  of  trial,  unless  the  written  tes- 
timony of  witnesses  shall  have  previously  been  taken  in  accordance 
with  general  law  upon  that  subject  and  produced  at  the  trial  in  the 
form  of  depositions. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  15 

Sec.  57.  Adjournment. — District  courts  shall  have  power  to  ad- 
journ the  hearing  of  an  action  from  day  to  day  as  the  interests  of 
justice  may  require,  but  shall  not  have  the  power  to  adjourn  hearings 
for  a  longer  period  than  one  week  for  each  adjournment,  nor  for 
more  than  three  months  in  all. 

Sec.  58.  Power  to  punish  for  contempt  of  court. — District  judges 
may  summarily  impose  a  fine  not  exceeding  five  dollars,  or  sentence 
to  imprisonment  for  a  period  not  exceeding  one  day,  or  impose  both 
of  such  punishments,  upon  a  person  guilty  of  misbehavior  in  the 
presence  of  or  so  near  the  district  judge  as  to  obstruct  him  in  the 
performance  of  his  judicial  duties. 

Sec.  59.  Judgments. — At  the  conclusion  of  the  trial,  the  judge  shall 
render  judgment  for  the  plaintiff  to  recover  such  sum  as  he  finds  to 
be  justly  his  due,  with  costs;  or  for  the  defendant  to  recover  his 
costs,  as  the  law  and  evidence  may  warrant.  If  there  is  a  counter- 
claim or  plea  in  offset  the  judge  shall  render  judgment  for  the  sum 
found  in  arrear  from  either  party,  with  costs.  But  he  may  adjourn 
the  disposition  of  the  case  to  a  stated  day,  not  exceeding  one  week 
from  the  time  of  the  conclusion  of  the  trial,  for  the  consideration 
of  judgment,  if  he  require  time  for  consideration. 

Sec.  60.  Form  of  judgment. — The  entry  of  judgment  need  not  state 
the  facts  or  conclusions  arrived  at  by  the  judge,  but  shall  be  sub- 
stantially in  the  following  form  only : 

"  Judgment  for  the  plaintiff  to  recover dollars  damages 

and  costs  of  the  action ;  "   or 

"  Judgment  for  the  defendant  to  recover  his  costs,"  if  he  shall  not 
be  entitled  to  anything  on  a  counterclaim ;    or,  "  Judgment  for  the 

defendant  to  recover dollars  and  his  costs,"  if  he  shall  have 

established  a  counterclaim  in  excess  of  the  demand  established  by  the 
plaintiff.  » 

Sec.  61.  Witnesses  may  be  subpoenaed. — At  the  instance  of  either 
party  the  judge  may  at  any  time  after  the  commencement  of  the 
action  issue  a  subpoena  directed  to  any  witness  whose  testimony  may 
be  desired,  requiring  his  attendance  as  a  witness  at  a  time  and  place 
therein  specified,  which  subpoena  shall  be  served  upon  the  witness 
in  the  same  manner  as  has  been  above  provided  for  the  service  of  a 
summons  to  the  defendant,  and  his  lawful  fees  as  a  witness  shall, 
if  he  require  it,  be  then  tendered  to  him.  If  the  witness  fails  to 
appear  at  the  time  and  place  specified  in  the  subpoena,  the  judge  may 
issue  a  warrant  upon  which  he  may  be  seized  and  brought  before 
the  judge  and  compelled  to  testify,  and  the  costs  of  such  warrant 
and  seizure  of  the  witness  shall  be  paid  by  the  witness  if  the  judge 
shall  determine  that  his  failure  to  answer  the  subpoena  was  willful 
or  without  excuse. 

Sec.  62.  Dockets. — Every  district  judge  shall  keep  a  well-bound 


16  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

book,  styled  "  Docket,"  upon  each  page  of  which  shall  be  room  for 
entries  as  to  two  actions,  entries  as  to  one  to  occupy  the  upper  half  of 
the  page,  and,  as  to  the  other,  the  lower  half.  Upon  it  he  shall 
enter  the  names  of  the  plaintiff  and  defendant  in  any  suit  brought 
before  him;  the  time  of  issuing  process,  and  when  returnable;  the 
appearance  or  default  of  the  person  summoned  to  appear ;  the  names 
of  the  witnesses  sworn;  the  date  and  amount  of  the  judgment;  the 
date  of  issuing  execution,  when  one  is  issued,  and  a  copy  of  the 
return  thereon;  the  appeal,  when  and  by  whom  demanded,  and, 
briefly,  all  the  proceedings  before  him  touching  the  suit. 

Sec  63.  Entry  to  identify  docket. — Each  district  judge  shall,  at 
the  beginning  and  in  front  of  all  his  entries  in  his  docket,  make 
and  subscribe  substantially  the  following  entry,  to  wit : 

"  A  docket  of  proceedings  in  matters  civil  and  criminal  before 

district  judge  of  the  administrative  district  of 

Canal  Zone. 

"  Witness  my  signature, 


District  Judge.'''1 

Sec.  64.  Final  disposition  of  dockets. — Every  district  judge 
whose  term  of  office  shall  expire,  or  who  shall  resign,  remove  from 
the  Zone,  or  otherwise  go  out  of  office  and  the  legal  representative 
of  every  district  judge  who  shall  die,  shall,  within  ten  days 
thereafter,  deliver  his  docket,  with  all  process  and  papers  and  books 
relating  to  his  office,  to  the  clerk  of  the  Circuit  Court  of  the  judicial 
circuit  of  the  district;  and  if  any  district  judge  shall  refuse 
or  neglect  to  deliver  such  docket,  process,  papers  and  books,  to  said 
clerk  as  required,  or,  in  case  of  his  death,  should  his  legal  representa- 
tive fail  so  to  do,  he  or  they  shall  be  guilty  of  a  misdemeanor,  and, 
on  conviction  thereof,  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars,  or  by  imprisonment  for  not  more  than  six  months, 
or  by  both.  Said  clerk  shall  keep  in  his  office  such  docket,  process, 
papers,  and  books  as  public  records,  and  shall  certify  copies  thereof, 
while  kept  by  him,  whenever  lawfully  demanded.  While  such  docket, 
process,  papers,  and  books  are  in  the  custody  of  the  clerk,  if  there 
shall  be  on  such  docket  any  judgment  unexecuted,  the  clerk  may  issue 
execution  upon  such  judgment,  and  the  execution  so  issued  shall  have 
the  same  effect  as  if  issued  by  the  judge  who  rendered  the  judgment. 

Sec  65  Execution. — If  no  appeal  from  a  judgment  of  a  district 
judge  shall  be  perfected  as  herein  provided,  the  district  judge 
shall,  at  the  request  of  the  successful  party,  issue  an  execution  for 
the  enforcement  of  the  judgment,  at  the  expiration  of  the  time 
limited  by  law  for  the  perfection  of  an  appeal. 

Sec  66.  When  judge  is  disqualified. — When  a  judge  is  disqualified 
from  presiding,  or  where  there  is  no  judge  in  the  district  where 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  17 

the  action  is  to  be  brought,  or  there  is  one  and  he  refuses  to  serve, 
generally  or  in  any  particular  case,  and  there  is  no  auxiliary  judge 
in  the  district  competent  and  able  to  sit,  any  district  judge  of 
the  Zone  shall  be  authorized  to  issue  all  process  and  to  preside  in  the 
particular  case  and  in  the  administrative  district  in  which  the  action 
shall  be  brought, 

Sec.  67.  Appeals. — Either  party  to  an  action  before  a  district 
judge  may  appeal  from  the  judgment  of  the  judge  to  the  next  regular 
stated  term  of  the  Circuit  Court  to  be  held  within  the  circuit  in  which 
the  judgment  was  rendered  in  the  manner  herein  provided. 

Sec.  68.  Effect  of  appeals. — A  perfected  appeal  shall  operate  to 
vacate  the  judgment  of  the  district  judge,  and  the  action  when  duly 
entered  in  the  Circuit  Court  shall  stand  for  trial  de  novo  upon  its 
merits  in  accordance  with  the  regular  procedure  in  that  court,  as 
though  the  same  had  never  been  tried  and  had  been  originally  there 
commenced. 

Sec.  69.  Appeals,  how  perfected. — Within  five  days  after  the  ren- 
dition of  a  judgment  by  a  district  judge,  the  party  desiring  to 
appeal  may  file  with  the  judge  a  written  statement  that  he  appeals 
to  the  Circuit  Court,  and  shall,  within  said  period  of  five  days,  give 
a  bond  with  sufficient  surety  to  be  approved  by  said  judge,  payable 
to  the  opposite  party,  in  the  penal  sum  of  one  hundred  dollars,  con- 
ditioned for  the  payment  of  all  such  costs  in  the  action  as  finally  may 
be  awarded  against  him.  The  filing  of  such  statement  and  giving  of 
such  bond  shall  perfect  the  appeal. 

Sec.  70.  'Copy  of  record  to  be  transmitted. — The  district  judge, 
upon  the  perfection  of  the  appeal,  shall  prepare  and  certify  his 
record  to  the  following  effect  namely : 

"  Copy  of  the  record  of  the  proceedings  before the 

district    judge    of    the    district    of    in    the    Canal 

Zone,  in  the  case  herein  set  forth,  to  wit:  (Here  copy  the  entries  on 
the  docket  and  certify  as  follows,  namely:) 

"  Canal  Zone,  District  of ,  I,  district 

judge  of  the  said  district,  certify  that  the  foregoing  is  a  copy  of  the 
record  and  proceedings  before  me  in  the  case  stated  therein  as  appears 
on  my  docket. 

"  Given  under  my  hand  this day  of ,  A.  D.  19__. 


"  District  Judge." 

Sec.  71.  Papers  to  be  delivered  to  clerk  of  Circuit  Court. — The 
district  judge  from  whose  decision  an  appeal  shall  be  taken  shall, 
on  or  before  the  first  day  of  the  next  term  of  the  Circuit  Court  for 
the  circuit  in  which  the  same  is  returnable,  transmit  to  the  clerk  of 
that  court  a  certified  copy  of  the  record  of  proceedings,  with  all  the 
original  papers  and  process  in  the  case,  and  the  original  appeal  bond 


18  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

given  by  the  appellant,  or  if  money  bond  was  taken  said  money,  and 
the  clerk  shall  docket  the  same  in  the  Circuit  Court,  and  shall  be 
entitled  to  the  same  fees,  upon  such  appeals,  as  for  similar  services 
in  suits  originating  in  said  court.  The  district  judge  shall  at  all 
times  be  allowed,  and,  in  the  interest  of  justice,  may  be  required,  by 
the  Circuit  Court,  to  amend  his  return  according  to  the  facts. 

Sec.  72.  Settlement  of  appeal  cases. — At  any  time  after  the  per- 
fection of  an  appeal  from  a  judgment  of  a  district  judge  and  be- 
fore the  papers  have  been  transmitted  to  the  clerk  of  the  Circuit 
Court  to  which  the  action  is  appealed,  the  parties  may  adjust  the 
controversy  by  agreement  in  writing,  signed  by  both  parties  and 
lodged  with  the  judge,  who  shall  enter  the  same  upon  his  docket,  and 
no  further  proceeding  shall  thereafter  be  taken  in  the  action.  But 
if  the  appeal  papers  have  already  been  transmitted  to  the  clerk  of 
the  Circuit  Court,  then  the  judge  shall  immediately  transmit  the 
compromise  agreement  to  the  clerk  of  the  Circuit  Court,  who  shall 
file  the  same  and  enter  a  memorandum  thereof  upon  his  docket,  and 
no  further  proceedings  shall  thereafter  be  taken  in  the  action. 

Sec  73.  Forcible  entry  into  and  detainer  of  land  or  buildings. — 
Anyone  deprived  of  the  possession  of  land,  or  a  building,  by  force, 
intimidation,  fraud,  strategy,  or  stealth,  and  any  landlord,  vendor, 
vendee,  or  other  person,  against  whom  the  possession  of  land  or  a  build- 
ing is  unlawfully  withheld,  by  his  tenant,  vendee,  vendor,  or  other 
person,  after  the  expiration  of  his  right  by  contract  express  or  implied, 
to  hold  possession,  and  the  legal  representatives  or  assigns  of  him 
who  is  so  deprived  of  possession,  or  from  whom  possession  is  so  with- 
held, as  against  him  who  so  obtains  possession  or  withholds  posses- 
sion after  the  expiration  of  his  rights,  and  all  persons  claiming  to 
hold  under  him,  shall,  at  any  time  within  one  year  after  such  depri- 
vation or  unlawful  withholding  of  possession  be  entitled  to  restitu- 
tion of  possession,  and  to  damages,  in  a  district  court,  in  the  man- 
ner hereinafter  prescribed.  The  owner  of  land,  or  of  a  building, 
occupied  by  a  tenant,  may  likewise  obtain  restitution  or  possession  of 
the  premises,  and  recover  rents  due  and  damages,  in  the  manner  next 
hereinafter  provided,  when  the  tenant  for  ten  days  after  due  demand 
for  payment  of  rent  due  for  the  occupancy  of  the  premises  shall 
have  refused  or  neglected  to  make  payment  of  the  same. 

Sec.  74.  The  complaint. — The  party  turned  out  of  possession,  or 
held  out  of  possession,  may  institute  an  action  before  any  district 
judge  of  the  district  in  which  the  land  or  building,  or  some  part 
thereof,  is  situated,  to  recover  possession  thereof  and  damages.  The 
complaint  shall  be  substantially  in  the  following  form :    . 

"  The  plaintiff  (naming  him)  complains  that  the  defendant  (nam- 
ing him)  has  unlawfully  turned  him  out  of  possession  (or  unlawfully 
withholds  from  him  the  possession,  as  the  case  may  be)   of  certain 


CODE    OF    CIVIL   PROCEDURE    OP   THE    CANAL    ZONE.  19 

lands  and  building  (here  describe  the  premises)  lying  and  being 
within  said  district,  whereof  he  prays  the  possession,  and  he  also 
prays  for  just  damages  and  costs. 

"(The  plaintiff  naming  him.)" 

The  complaint  shall  be  verified  by  the  oath  of  the  plaintiff,  or  his 
agent  or  attorney,  and  certified  by  the  district  judge  before  whom 
the  action  is  instituted.  Process  shall  issue  to  and  be  served  upon 
the  defendant,  as  in  other  actions  before  a  district  judge. 

Sec.  75.  Trial. — The  action  shall  be  tried  in  the  same  manner  as 
other  actions  before  a  district  judge. 

Sec  76.  Continuance,  and  obligation  therefor. — No  continuance 
shall  be  granted  for  a  longer  period  than  one  week,  unless  the  de- 
fendant applying  therefor  shall  give  an  obligation  to  the  adverse 
party,  with  good  and  sufficient  sureties  to  be  approved  by  the  judge, 
conditioned  for  the  payment  of  rent  and  damages  that  may  accrue, 
if  judgment  be  rendered  against  the  defendant. 

Sec  77.  Judgment. — If,  upon  trial,  the  court  shall  find  that  the 
complaint  is  not  true,  it  shall  enter  judgment  against  the  plaintiff 
for  costs.  If  it  finds  the  complaint  to  be  true,  it  shall  render  judgment 
against  the.  defendant  in  favor  of  the  plaintiff  for  restitution  of  the 
premises,  and  costs  of  suit,  and  for  all  arrears  of  rent,  or  a  reason- 
able compensation  for  the  use  and  occupation  of  the  premises. 

Sec  78.  The  execution. — When  a  judgment  of  restitution  shall  be 
entered  by  the  justice,  he  shall,  at  the  request  of  the  plaintiff,  his 
agent  or  attorney,  issue  a  writ  of  execution  thereon,  which  shall  be 
in  the  following  form,  as  near  as  practicable : 
"  The  Canal  Zone, 

"District  of 

"  To  any  officer  authorized  to   serve   process   in  the   district  of 

"  Whereas,  in  a  certain  action  for  the  forcible  entry  and  detention 
(or  forcible  detention,  as  the  case  may  be)  of  the  following-described 
premises,  to  wit,  (here  describe  them)  lately  tried  before  me,  wherein 

was  plaintiff  and was  defendant,  judgment 

was  rendered  on  the day  of A.  D.  19 ,  that  the  plaintiff 

have  restitution  of  the  premises,  and  also  that  he  recover  damages  to 

the  amount  of dollars;   also  that  he  recover  costs  in  the  sum 

of dollars.     You  are  therefore  hereby  commanded  to  cause 

the  defendant  to  forthwith  remove  from  said  premises,  and  that  the 
said  plaintiff  have  restitution  of  the  same;  also  that  you  levy  upon 
the  goods  and  chattels  of  the  said  defendant  and  collect  from  him 
the  rent,  damages,  and  costs  aforesaid,  and  costs  of  this  execution  and 
service  thereof,  in  due  form  of  law. 

"Witness  my  hand  this day  of A.  D.  19__ 

"District  Judge.'''' 
But  such  execution  shall  not  issue  within  five  days  from  the  date 
of  the  judgment,  nor  if  an  appeal  to  the  Circuit  Court  has  been  per- 


20  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

fected  by  the  due  execution  and  delivery  of  the  obligation  referred 
to  in  section  eighty-one. 

Sec.  79.  Service  of  execution. — The  officer  shall,  upon  receiving  the 
execution,  execute  the  same,  by  restoring  to  the  plaintiff  the  posses- 
sion of  the  premises,  and  shall  levy  and  collect  the  rent,  damages, 
and  costs  awarded,  and  make  return,  as  upon  other  executions. 

Sec.  80.  Such  judgment  not  conclusive  in  another  action. — A  judg- 
ment rendered  in  a  suit  of  unlawful  entry  and  detainer,  either  for 
the  plaintiff  or  defendant,  shall  not  bar  an  action  in  the  Circuit 
Court  between  the  same  parties  respecting  title  to  the  land  or  build- 
ing; nor  shall  any  judgment  given  therein  be  held  conclusive  of  the 
facts  found  in  another  action  between  the  same  parties. 

Sec  81.  Appeal. — Either  party  may  appeal  from  the  judgment  of 
the  district  judge  to  the  Circuit  Court  and  the  suit  shall  therein 
be  conducted  as  appeals  from  district  judges  in  other  civil  actions: 
if  the  plaintiff  recovers  possession  of  the  premises  in  the  Circuit 
Court,  he  shall  have  judgment  for  the  amount  of  rents  or  damages 
then  due.  If  the  defendant  appeals  from  the  judgment  of  the  judge 
he  shall  give  an  obligation  to  the  plaintiff  with  sufficient  sureties, 
to  be  approved  by  the  judge,  to  enter  the  action  in  the  Circuit  Court, 
and  to  pay  rent  then  due,  and  intervening  rent,  damages,  and  costs; 
and  the  defendant  and  the  sureties  shall  be  liable  upon  their  obliga- 
tion for  such  rent,  intervening  rent,  damages,  and  costs,  down  to  the 
time  of  the  final  judgment  in  the  action.  The  appeal  shall  not  be 
allowed  until  such  obligation  has  been  filed  with  the  judge,  and  the 
obligation  shall  be  transmitted  by  the  judge  with  the  other  papers 
to  the  clerk  of  the  Circuit  Court  to  which  the  action  is  appealed. 

PROCEDURE  IN  CIRCUIT  COURTS  IN  ACTIONS. 

Chapter  V. 

PLEADINGS. 

Sec  82.  Pleadings. — The  only  pleading  allowed  on  the  part  of  the 
plaintiff  shall  be : 

1.  The  complaint; 

2.  The  demurrer  to  the  answer ; 
And  on  the  part  of  the  defendant : 

1.  The  demurrer  to  the  complaint; 

2.  The  answer. 

Sec  83.  Complaint. — The  complaint  is  a  statement  in  a  methodical 
and  logical  form  of  the  circumstances  which  constitute  the  plaintiff's 
cause  of  action.     The  complaint  must  contain : 

1.  The  name  of  the  court  and  circuit  in  which  the  action  is  brought, 
and  the  names  of  the  parties  to  the  action ; 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  21 

2.  A  brief  statement  of  the  facts  constituting  the  cause  of  action, 
in  ordinary  and  concise  language  without  argument  or  unnecessary 
repetition  with  a  reference  by  number  or  page  to  the  sections  of  the 
several  codes,  if  any,  upon  which  the  action  is  founded.  If  the  com- 
plaint contains  more  than  one  cause  of  action,  each  distinct  cause 
of  action  must  be  set  forth  in  a  separate  paragraph  containing  all 
the  facts  constituting  the  particular  cause  of  action; 

3.  A  demand  for  the  relief  which  the  plaintiff  claims. 

4.  Where  documents  are  relied  upon  they  shall  accompany  the 
memorial  or  complaint.  A  properly  authenticated  copy  of  any 
document,  made  by  an  officer  in  charge  of  the  archives  in  which  the 
original  is  kept,  may  be  used  in  evidence  in  lieu  of  the  original. 

5.  All  pleadings  in  the  case  must  be  written  either  in  English  or 
Spanish,  and  must  be  on  regular  legal  cap  paper,  and  written  on 
but  one  side,  and  always  be  furnished  in  duplicate.  For  convenience, 
papers  in  the  case  written  on  typewriter  are  desirable,  although  not 
obligatory. 

6.  All  pleadings  in  the  case  shall  be  translated  from  Spanish  to 
English  if  necessary  by  the  officers  of  the  court  free  of  charge  to 
those  offering  same. 

7.  All  documents  and  exhibits  of  whatever  character  and  kind 
shall  be  furnished  to  the  court  with  a  translated  copy,  if  in  Spanish ; 
or,  in  case  they  do  not  so  furnish  them,  the  party  offering  the  same 
shall  deposit  a  fund  sufficient  to  have  them  translated  from  Spanish 
into  English. 

8.  The  rate  of  translating  from  Spanish  to  English  shall  be  fifty 
cents  per  typewritten  page  of  three  hundred  words. 

9.  Documents  not  accompanying  the  memorial,  petition  or  com- 
plaint, or  the  answer,  or  the  counter-claim,  or  some  other  pleading  in 
the  cause,  may  be  excluded  by  the  court  unless  the  same  are  offered  a 
sufficient  length  of  time  before  the  trial  to  have  the  same  properly 
translated,  unless  some  sufficient  reason  for  their  non-production 
earlier  is  given  or  the  court  admits  the  same  for  other  good  and 
sufficient  cause. 

10.  If  the  recovery  of  money  or  damages  is  demanded,  the  amount 
demanded  must  be  stated.  If  special  relief,  such  as  an  order  for  the 
specific  restitution  of  property,  or  the  specific  enforcement  of  a  writ- 
ten contract  for  the  sale  of  property,  or  an  injunction  is  sought,  the 
ground  of  demanding  such  relief  must  be  stated  and  the  special  relief 
prayed  for.  But  there  may  be  added  to  the  statement  of  the  specific 
relief  demanded  a  general  prayer  for  such  further  or  other  relief  as 
shall  be  deemed  equitable. 

Sec.  84.  Demurrer  to  the  complaint. — The  demurrer  is  an  allega- 
tion that,  admitting  the  facts  of  the  preceding  pleading  to  be  true,  as 
stated  by  the  party  making  it,  he  has  yet  shown  no  cause  why  the 


22  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

party  demurring  should  be  compelled  by  the  court  to  proceed  further. 
It  imports  that  the  objecting  party  will  not  proceed,  but  will  wait 
the  judgment  of  the  court,  whether  he  is  bound  so  to  do.  The  defend- 
ant may  demur  to  the  complaint,  or  to  the  statement  of  any  distinct 
cause  of  action  therein  set  forth,  within  the  time  fixed  by  general 
rules  of  court  for  such  pleadings  when  it  appears  upon  the  face 
thereof,  either : 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  defend- 
ant, or  the  subject  of  the  action ;  or 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue;   or 

3.  That  there  is  another  action  pending  between  the  same  parties 
for  the  same  cause ;  or 

4.  That  there  is  a  defect  or  misjoinder  of  parties,  plaintiff  or 
defendant ;   or 

5.  That  the  complaint  is  ambiguous,  unintelligible,  or  uncertain ;  or 

6.  That  reference  to  the  section  of  the  Code  upon  which  the  plain- 
tiff relies  to  sustain  his  action  has  not  been  made ;   or 

7.  That  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

The  demurrer  must  distinctly  specify  the  grounds  upon  which  any 
of  the  objections  to  the  complaint,  or  to  any  of  the  causes  of  action 
therein  stated,  are  taken. 

Sec.  85.  Mattel's  not  apparent  of  record.— When  any  of  the  matters 
enumerated  in  section  eighty-four  do  not  appear  upon  the  face  of  the 
complaint,  the  objection  can  only  be  taken  by  answer. 

Sec  86.  Effect  of  failure  to  object. — If  no  objection  be  taken  to  the 
complaint,  either  by  demurrer  or  answer,  the  defendant  shall  be 
deemed  to  have  waived  all  objections  excepting  only  the  objection  to 
the  jurisdiction  of  the  court,  over  the  subject-matter,  and  that  the 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of  action. 

Sec.  87.  The  answer. — The  ans-wer  is  a  defense  in  writing,  made  by 
a  defendant  to  the  charges  contained  in  a  complaint  filed  by  the 
plaintiff  against  him.    The  answer  of  the  defendant  shall  contain: 

1.  A  general  or  specific  denial  of  the  material  allegations  of  the 
complaint,  controverted  by  the  defendant.  A  general  denial  puts  in 
issue  only  the  material  allegations  of  the  complaint; 

2.  A  statement  of  any  new  matter  constituting  a  defense  or  coun- 
terclaim. A  material  allegation  of  the  complaint  which  is  neither 
general  nor  specifically  denied  in  the  answer  shall  be  deemed  to  have 
been  admitted. 

Sec  88.  Defendant  having  <  mutter  claim. — The  defendant  may  set 
forth  by  answer  as  many  defenses  and  counterclaims  as  he  may  have, 
whatever  their  nature.  They  must  be  separately  stated,  and  the 
several  defenses  must  refer  to  the  cause  of  action  which  they  are 
intended  to  answer,  in  a  manner  by  which  they  may  be  intelligibly 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  23 

distinguished.  The  defendant  may  also  answer  one  or  more  of  the 
several  causes  of  action  stated  in  the  complaint,  and  demur  to  the 
residue. 

Sec.  89.  Character  of  counterclaim. — A  counterclaim,  to  be  avail- 
able as  a  defense  in  an  answer,  must  be  one  in  favor  of  all  the  sub- 
stantial defendants  and  against  all  the  substantial  plaintiffs  in  the 
action. 

Sec  90.  Effect  of  omission  to  set  up  counter  claim. — If  the  right 
out  of  which  the  counterclaim  arises  exists  at  the  time  of  the  com- 
mencement of  the  action  and  arises  out  of  the  transaction  set  forth 
in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or  is  neces- 
sarily connected  with  the  subject  of  the  action,  neither  the  defendant 
nor  his  assignee  can  afterwards  maintain  an  action  against  the 
plaintiff  therefor,  if  the  defendant  omits  to  set  up  a  counterclaim 
for  the  same.  But  if  the  counterclaim  arises  out  of  transactions 
distinct  from  those  set  forth  in  the  complaint  as  the  foundation  of 
the  plaintiff's  claim  and  not  connected  with  the  subject  of  the  action, 
the  defendant  shall  not  be  barred  from  any  subsequent  action  upon 
such  counterclaim  by  reason  of  his  failure  to  set  it  up  in  his  answer 
to  the  pending  action. 

Sec  91.  Cross  complaint. — Whenever  the  defendant  seeks  affirma- 
tive relief  apart  from  the  payment  of  money,  he  may,  in  addition 
to  his  answer,  file  at  the  same  time,  or  by  permission  of  the  court 
subsequently,  a  cross  complaint.  The  defendants  to  the  cross  com- 
plaint may  demur  or  answer  thereto  as  they  would  to  an  original 
complaint.  Where  it  is  necessary  for  the  defendant  to  bring  a  new 
party  or  parties  before  the  court,  he  shall  so  state  in  his  cross  com- 
plaint and  a  summons  shall  issue  and  other  proceedings  be  had,  as  in 
the  case  of  an  original  complaint. 

Sec  92.  Demurrer  to  answer. — The  plaintiff  may,  within  a  period 
to  be  fixed  by  general  rules  of  court,  demur  to  the  answer  of  the 
defendant  or  to  one  or  more  of  the  several  defenses  or  counterclaims 
set  up  in  the  answer,  so  as  thus  to  test  the  legal  sufficiency  of  the 
answer. 

Sec  93.  Grounds  of  demurrer  to  answer. — The  demurrer  may  be 
taken  upon  one  or  more  of  the  following  grounds: 

1.  That  the  answer  does  not  state  facts  sufficient  to  constitute  a 
defense  or  counterclaim; 

2.  That  the  answer  is  ambiguous,  unintelligible,  or  uncertain. 
The  demurrer  must  distinctly  specify  the  grounds  upon  which  any 

of  the  objections  to  the  answer  are  taken. 

Sec  94.  Proceedings  on  demurrer. — When  a  demurrer  to  any 
pleading  is  sustained,  the  party  whose  pleading  is  thus  adjudged 
defective  may  amend  his  pleading  within  a  time  to  be  fixed  by  thvi 
court,  with  or  without  terms,  as  to  the  court  shall  seem  just;   but  if 


21  CODE    OF    CIVIL   PKOCEDUKE    OF    THE    CANAL   ZONE. 

the  party  fails  to  amend  his  pleading  within  the  time  limited  or  elects 
not  to  amend,  the  court  shall  render  such  judgment  upon  the  subject- 
matter  involved  in  the  pleading  and  demurrer  as  the  law  and  the 
facts  of  the  case  as  set  forth  in  the  pleadings  warrant.  If  the 
demurrer  is  overruled,  the  court  shall  proceed,  if  no  answer  is  filed, 
to  render  such  judgment  as  the  law  and  the  facts  duly  pleaded  war- 
rant. But  after  the  overruling  of  a  demurrer  to  an  answer  the  plain- 
tiff may  amend  his  complaint,  if  necessary,  to  meet  new  facts  or 
counterclaims  set  forth  in  the  answer. 

Sec.  95.  Authentication  of  pleadings. — Every  pleading  must  be 
subscribed  by  the  party  or  his  attorney  and  a  copy  thereof  must  be 
forthwith  furnished  to  the  adverse  party  or  his  attorney. 

Sec  96.  Actions  and  defenses  based  upon  written  instruments. — 
When  an  action  is  brought  upon  a  written  instrument  and  the  com- 
plaint contains  or  has  annexed  a  copy  of  such  instrument,  the  genu- 
ineness and  due  execution  of  the  instrument  shall  be  deemed  admit- 
ted, unless  specifically  denied  under  oath  in  the  answer;  and  when 
the  defense  to  an  action,  or  a  counterclaim  stated  in  an  answer,  is 
founded  upon  a  written  instrument  and  the  copy  thereof  is  contained 
in  or  annexed  to  the  answer,  the  genuineness  and  due  execution  of 
such  instrument  shall  be  deemed  admitted,  unless  specifically  denied 
under  oath  by  the  plaintiff  in  his  pleadings. 

Sec.  97.  Plaintiffs  reply  to  new  matter  contained  in  answer. — The 
plaintiff  may  reply  to  any  new  matter  or  special  defense  set  up  in 
the  defendant's  answer  by  an  amendment  to  his  complaint,  which 
may  be  filed  as  a  matter  of  course  and  without  terms,  within  a  period 
to  be  fixed  by  rules  of  court.  If  the  plaintiff  does  not  amend  his 
complaint,  as  provided  in  this  section,  he  shall  be  deemed  to  have 
controverted  every  material  statement  of  the  answer. 

Sec.  98.  Supplemental  complaint  or  answer. — The  plaintiff  and 
defendant,  respectively,  may  be  allowed,  on  motion  to  make  a  sup- 
plemental complaint  or  answer,  alleging  facts  material  to  the  case 
occurring  after  the  filing  of  the  original  complaint  or  answer. 

Sec.  99.  Pleadings  to  be  liberally  construed. — In  the  construction 
of  a  pleading,  for  the  purpose  of  determining  its  effects,  its  allega- 
tions shall  be  liberally  construed,  with  a  view  to  substantial  justice 
between  the  parties. 

Sec.  100.  Sham  or  irrelevant  pleadings. — Sham  and  irrelevant 
answers,  and  irrelevant,  redundant,  or  indecent  matter  inserted  in  a 
pleading,  may  be  stricken  out,  upon  such  terms  as  the  court  may, 
in  its  discretion,  impose. 

Sec.  101.  Specifications. — The  court  may,  in  its  discretion,  at  any 
time,  upon  motion,  order  either  party  to  make  his  pleading  more 
definite,  or  to  file  specifications  of  his  items  of  account  or  other  claims 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL,    ZONE.  25 

involved  in  the  pleading,  so  as  to  furnish  the  adverse  party  with 
complete  information  as  to  the  claim  which  he  is  required  to  meet. 

Sec.  102.  Variance. — An  immaterial  variance  between  the  allega- 
tion in  a  pleading  and  the  proof  shall  be  disregarded  and  the  facts 
found  according  to  the  evidence,  and  the  pleading  shall  be  forthwith 
amended  in  accordance  with  the  facts  found,  unless  it  has  actually 
misled  the  adverse  party  to  his  prejudice  in  maintaining  his  action 
or  defense  upon  the  merits.  Whenever  it  appears  that  a  variance  is 
material  and  that  a  party  has  been  misled,  courts  shall  not  dismiss 
the  action  by  reason  of  the  variance,  but  shall,  upon  such  terms  as 
may  be  just,  order  the  pleadings  to  be  forthwith  amended  in  accord- 
ance with  the  facts,  and  determine  the  action  upon  the  actual  facts  as 
established.  The  amendments  provided  in  this  section  may  be  made 
either  in  the  Circuit  Court  or  in  the  Supreme  Court,  at  any  stage  of 
the  action. 

Sec.  103.  Amendments  in  general. — The  court  shall,  in  furtherance 
of  justice,  and  on  such  terms,  if  any,  as  may  be  proper,  allow  a 
party  to  amend  any  pleading  or  proceeding  and  at  any  stage  of  the 
action,  in  either  Circuit  Court  or  the  Supreme  Court,  by  adding  or 
striking  out  the  name  of  any  party,  either  plaintiff  or  defendant, 
or  by  correcting  a  mistake  in  the  name  of  a  party,  or  a  mistaken  or 
inadequate  allegation  or  description  in  any  other  respect,  so  that  the 
actual  merits  of  the  controversy  may  speedily  be  determined,  without 
regard  to  technicalities,  and  in  the  most  expeditious  and  inexpensive 
manner.  The  court  may  also,  upon  like  terms,  allow  an  answer  or 
other  pleading  to  be  made  after  the  time  limited  by  the  rules  of  the 
court  for  filing  the  same.  Orders  of  the  court  upon  the  matters 
provided  in  this  section  shall  be  made  upon  motion  filed  in  court,  and 
n  fter  notice  to  the  adverse  party,  and  an  opportunity  to  be  heard. 

Sec.  104.  When  name  of  defendant  is  unknown. — When  the  plain- 
tiff is  ignorant  of  the  name  of  a  defendant,  he  must  state  that  fact  in 
the  complaint,  and  such  defendant  may  be  designated  in  any  com- 
plaint or  proceeding  by  any  name.  When  his  true  name  is  discovered 
the  pleading  or  proceedings  must  be  amended  accordingly. 

Sec.  105.  Proceedings  in  cases  of  appeal  from  district  courts. — 
"When  a  perfected  appeal  from  a  judgment  of  a  district  judge  has 
been  duly  entered  in  the  Circuit  Court  new  pleadings  shall  be  filed  in 
the  action  in  that  court,  and  the  pleadings  in  such  action  shall  be  in 
all  respects  governed  by  the  same  rule  as  though  the  action  had  been 
originally  commenced  in  the  Circuit  Court,  But  the  plaintiff  may,  if 
he  so  elects,  rely  upon  his  complaint  as  originally  filed  before  the 
district  judge,  instead  of  filing  a  new  one. 

Sec.  106.  Relief  from  effect  of  judgments  and  orders. — Upon  such 
terms  as  may  be  just  the  court  may  relieve  a  party  or  his  legal  rep- 


26  CODE    OF    CIVIL   PROCEDURE    OP    THE    CANAL    ZONE. 

resentative  from  a  judgment,  order,  or  other  proceeding  taken  against 
him  through  his  mistake,  inadvertence,  surprise,  or  excusable  neglect : 
Provided,  That  application  therefor  be  made  within  a  reasonable 
time,  but  in  no  case  exceeding  six  months  after  such  judgment,  order, 
or  proceeding  was  taken. 

Chapter  VI. 

PARTIES   TO   ACTIONS. 

Sec.  107.  Parties  to  actions. — Every  action  must  be  prosecuted  in 
the  name  of  the  real  party  in  interest.  But  in  the  case  of  an  assign- 
ment of  a  right  of  action,  an  action  by  the  assignee  shall  be  without 
prejudice  to  any  set-off  or  other  defense  existing  at  the  time  of  or 
before  notice  of  assignment;  but  this  last  provision  shall  not  apply 
to  a  negotiable  promissory  note,  or  a  draft  or  a  bill  of  exchange, 
transferred  in  good  faith  and  upon  good  consideration  before  ma- 
turity. And  an  executor  or  administrator  or  legal  representative  of 
a  deceased  person,  or  a  trustee  of  an  express  trust,  or  a  person  ex- 
pressly authorized  by  law  so  to  do,  or  a  lawfully  appointed  guardian 
of  a  person  of  unsound  mind,  or  of  a  minor,  may  sue  or  be  sued  with- 
out joining  with  him  the  person  for  whose  benefit  the  action  is 
prosecuted  or  defended. 

Otherwise  than  as  provided  in  this  section,  all  persons  having  an 
interest  in  the  subject  of  the  action  and  in  obtaining  the  relief  de- 
manded shall  be  joined  as  plaintiffs. 

Any  person  should  be  made  a  defendant  who  has  or  claims  an  in- 
terest in  the  controversy  or  the  subject-matter  thereof  adverse  to 
the  plaintiff,  or  who  is  a  necessary  party  to  a  complete  determination 
or  settlement  of  the  questions  involved  therein. 

If  any  person  having  an  interest  in  the  subject  of  the  action,  and 
in  obtaining  the  relief  demanded,  refuses  to  join  as  plaintiff  with 
those  having  a  like  interest,  he  may  be  made  a  defendant,  the  fact  of 
his  interest  and  refusal  to  join  being  stated  in  the  complaint. 

Sec.  108.  Married  woman  as  a  party. — When  a  married  woman  is 
a  party,  her  husband  must  be  joined  with  her,  except: 

1.  When  the  action  concerns  her  property,  in  which  her  husband 
can  have  no  interest  or  right ; 

2.  When  the  action  is  between  herself  and  her  husband ; 

3.  When  for  a  just  cause  she  is  living  separate  and  apart  from  her 
husband  or  by  reason  of  an  agreement  in  writing  entered  into  between 
them. 

In  either  of  which  cases  she  may  sue  or  be  sued  alone. 
Sec.  109.  Infants,  spendthrifts,  and  persons  of  unsound  mind. — 
When  an  infant  or  a  person  of  unsound  mind  or  a  person  judicially 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  27 

decreed  to  be  a  spendthrift  is  a  party  to  an  action,  he  must  appear 
either  by  his  general  guardian  or  by  a  guardian  ad  litem  appointed 
by  the  court  in  which  the  action  is  pending.  A  guardian  ad  litem 
may  be  appointed  in  any  case  when  it  is  deemed  by  the  court  in  which 
the  action  or  proceeding  is  prosecuted  expedient  to  represent  the 
infant,  spendthrift,  or  person  of  unsound  mind  in  the  action  or  pro- 
ceeding. 

Sec.  110.  Guardian  ad  litem. — Such  guardian  ad  litem  may  be 
appointed  by  the  court  of  its  own  motion,  and  shall  be  appointed 
upon  the  application  of  a  relative  or  friend  of  the  infant,  spend- 
thrift, or  person  of  unsound  mind.  The  court  may,  in  its  discretion, 
allow  to  a  guardian  ad  litem  a  reasonable  compensation  for  his 
services  as  such  guardian,  to  be  paid  out  of  the  estate  of  the  ward. 

Sec  111.  Numerous  parties. — When  the  subject-matter  of  the  con- 
troversy is  one  of  common  or  general  interest  to  many  persons,  and 
the  parties  are  so  numerous  that  it  is  impracticable  to  bring  them  all 
before  the  court,  one  or  more  may  sue  or  defend  for  the  benefit  of 
all.  But  in  such  case  any  party  in  interest  shall  have  a  right  to 
intervene  in  protection  of  his  individual  interest,  and  the  court  shall 
make  sure  that  the  parties  actually  before  it  are  sufficiently  numerous 
and  representative  so  that  all  interests  concerned  are  fully  protected. 

Sec  112.  Death  of  party. — In  case  a  party  to  an  action  dies  while 
the  action  is  pending,  the  action  shall  not  abate  by  reason  thereof, 
but  the  court  on  motion  may  allow  the  action  or  proceeding  to  be 
continued  by  or  against  his  executor,  administrator,  heirs,  or  other 
legal  representative,  and  the  judgment,  if  it  be  for  the  payment  of 
costs  and  against  the  executor,  administrator,  or  other  legal  repre- 
sentative, shall  be  that  he  pay  in  due  course  of  administration :  Pro- 
vided] nevertheless,  That  if  the  action  is  for  the  recovery  of  money, 
debt,  or  damages  against  the  deceased,  it  shall  be  discontinued,  and 
the  claim  thereafter  be  prosecuted  as  herein  otherwise  provided ;  and 
provided  further,  that  should  any  action  survive  against  the  heirs 
of  the  deceased,  the  court  may  ascertain  who  are  the  heirs  of  the 
deceased  and  proceed  as  if  the  suit  had  been  originally  brought 
against  them. 

Sec  113.  Interpleading. — Whenever  conflicting  claims  are  or  may 
be  made  upon  a  person  for  or  relating  to  personal  property,  or  the 
performance  of  an  obligation  or  any  portion  thereof,  so  that  he  may 
be  made  subject  to  several  actions  by  different  persons,  unless  the 
court  intervenes,  such  person  may  bring  action  against  the  conflicting 
claimants,  disclaiming  personal  interest  in  the  controversy  to  compel 
them  to  interplead  and  litigate  their  several  claims  among  themselves, 
and  the  court  may  order  the  conflicting  claimants  to  interplead  with 
one  another  and  thereupon  proceed  to  determine  the  right  of  the 
several  parties  to  the  interpleading  to  the  personal  property  or  the 


28  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

performance  of  the  obligation  in  controversy,  and  shall  determine  the 
rights  of  all  parties  in  interest. 

Sec.  114.  Intervention. — A  person  may,  at  any  period  of  a  trial, 
upon  motion,  be  permitted  by  the  court  to  intervene  in  an  action  or 
proceeding,  if  he  has  legal  interest  in  the  matter  in  litigation,  or  in 
the  success  of  either  of  the  parties,  or  an  interest  against  both.  Such 
intervening  party  may  be  permitted  to  join  the  plaintiff  in  claiming 
what  is  sought  by  the  claimant,  or  to  unite  with  the  defendant  in 
resisting  the  claims  of  the  plaintiff,  or  to  demand  anything  adverse 
to  both  the  plaintiff  and  defendant.  Such  intervention,  if  permitted 
by  the  court,  shall  be  made  by  complaint  in  regular  form,  filed  in 
court,  and  may  be  answered  or  demurred  to  as  if  it  were  an  original 
complaint.  Notice  of  motion  for  such  intervention  shall  be  given 
to  all  parties  to  the  action,  and  notice  may  be  given  by  publication,  in 
accordance  with  the  provisions  of  this  Code  relating  to  publication, 
in  cases  where  other  notice  is  impracticable. 

Sec  115.  Necessary  parties. — The  court  may  determine  any  con- 
troversy between  parties  before  it  if  it  can  be  done  without  preju- 
dice to  the  rights  of  others  or  by  preserving  their  rights  for  future 
action;  but  when  a  complete  determination  of  the  controversy  can 
not  be  had  without  the  presence  of  other  parties,  the  court  must 
order  them  to  be  brought  in,  and  to  that  end  may  order  amended  or 
supplemental  pleadings,  or  a  cross  complaint,  to  be  filed  and  sum- 
mons therein  to  be  duly  issued  and  served. 

Chapter  VII. 

VARIOUS    PROCEEDINGS    IN    CIRCUIT    COURTS. 

Sec.  116.  Interlocutory  and  incidental  orders. — No  interlocutory 
or  incidental  ruling,  order,  or  judgment  of  the  Circuit  Court  shall 
stay  the  progress  of  an  action  or  proceeding  therein  pending,  but 
only  such  ruling,  order,  or  judgment  as  finally  determines  the  ac- 
tion or  proceeding;  nor  shall  any  ruling,  order,  or  judgment  be  the 
subject  of  appeal  to  the  Supreme  Court  until  final  judgment  is  ren- 
dered for  one  party  or  the  other :  Provided,  That  whenever  an  inter- 
locutory order  or  decree  is  entered  in  any  suit  pending  in  any  court 
of  the  Canal  Zone,  granting  an  injunction,  or  overruling  a  motion 
to  dissolve  the  same,  or  enlarging  the  scope  of  an  injunction  order, 
or  appointing  a  receiver,  or  giving  other  or  further  powers  or  prop- 
erty to  a  receiver  already  appointed,  an  appeal  may  be  taken  from 
such  interlocutory  order  or  decree  to  the  Supreme  Court  of  the 
Canal  Zone:  Provided,  That  such  appeal  is  taken  within  thirty  days 
from  the  entry  of  such  interlocutory  order  or  decree  and  is  perfected 
in  said  Supreme  Court  within  sixty  days  from  the  entry  of  such 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  29 

order  or  decree.  The  force  and  effect  of  such  interlocutory  order  or 
decree  and  the  proceedings  in  the  court  below  shall  not  be  stayed 
during  the  pendency  of  such  appeal,  and  the  party  taking  such  ap- 
peal shall  give  bond,  to  be  approved  by  the  clerk  of  the  court  below, 
to  secure  costs  in  the  Supreme  Court.  Upon  the  filing  of  the  record 
in  the  Supreme  Court,  the  same  shall  there  be  at  once  docketed,  and 
shall  be  ready  for  hearing  under  the  rules  of  said  court,  taking 
precedence  of  other  causes  in  said  court.  Upon  such  appeal  the  Su- 
preme Court  may  affirm,  modify,  or  reverse  such  interlocutory  order 
or  decree,  and  shall  direct  such  proceedings  to  be  had  in  the  court 
below  as  the  justice  of  the  case  may  require.  If  such  appeal  is  dis- 
missed, the  Supreme  Court  may  allow  to  the  attorney  for  appellee  a 
reasonable  attorney's  fee,  not  to  exceed  one  hundred  dollars,  to  be 
taxed  as  part  of  the  costs  of  the  appeal. 

Sec.  117.  Judgment  in  case  of  several  plaintiffs  or  defendants. — 
Judgment  may  be  given  for  or  against  one  or  more  of  several  plain- 
tiffs, and  for  or  against  one  or  more  of  several  defendants,  and  the 
court  may,  when  the  justice  of  the  case  requires  it,  conclusively 
determine  the  ultimate  rights  of  the  parties  on  each  side,  as  between 
themselves,  and  may  require  such  parties  to  file  adversary  pleadings 
as  between  themselves. 

Sec  118.  Several  judgments.. — In  an  action  against  several  defend- 
ants the  court  may,  in  its  discretion,  render  judgment  against  one 
or  more  of  them,  upon  default  or  confession,  or  otherwise,  leaving 
the  action  to  proceed  against  the  others  whenever  a  several  judgment 
is  proper. 

The  court  may,  in  its  discretion,  order  execution  to  issue  upon  such 
several  judgment. 

Sec  119.  Kind  of  relief  to  be  granted. — The  relief  granted  to  the 
plaintiff,  if  there  be  no  answer,  can  not  exceed  that  which  he  shall 
have  demanded  in  his  complaint;  but,  in  any  other  case,  the  court 
may  grant  him  any  relief  consistent  with  the  case  made  by  the  com- 
plaint and  supported  by  the  evidence  and  embraced  within  the  issues, 
requiring  the  necessary  amendments. 

Sec  120.  Dismissal  of  actions. — An  action  may  be  dismissed,  with 
costs  to  the  defendant,  in  the  following  cases : 

1.  By  the  plaintiff  himself,  by  written  request  to  the  clerk  filed 
among  the  papers  in  the  case,  at  any  time  before  trial,  upon  pay- 
ment of  the  costs;  provided  a  counterclaim  has  not  been  made,  or 
affirmative  relief  sought  by  the  cross  complaint  or  answer  of  the 
defendant,  or  provided  the  judge  shall  not  decide  that  the  defendant 
has  made  such  preparation  for  trial  that  it  would  be  unjust  to  permit 
a  dismissal  without  a  trial  on  the  merits; 

2.  By  the  court,  when  the  plaintiff  fails  to  appear  at  the  time  of 
trial,  and  the  defendant  appears  and  asks  for  the  dismissal; 

803a— 07— m 3 


30  CODE    OP    CIVIL   PKOCEDURE    OP    THE    CANAL    ZONE. 

3.  By  the  court,  when  the  plaintiff  fails,  for  an  unreasonable 
length  of  time,  to  prosecute  his  action; 

4.  The  court  may  also,  in  its  discretion,  allow  a  plaintiff  to  dismiss 
the  action  on  payment  of  the  costs  after  the  trial  has  begun  and  at 
any  time  before  final  adjournment,  if  the  interests  of  justice  so  require; 

5.  The  dismissal  in  the  above  cases  shall  be  entered  on  the  docket 
of  the  court  and  shall  be  effective,  when  so  entered,  to  end  the  action ; 
but  shall  not  be  a  bar  to  another  action  for  the  same  cause. 

Sec.  121.  Default. — In  case  a  defendant  fails  to  appear  at  the 
time  required  in  the  summons,  or  to  answer  at  the  time  provided 
\y$  the  rules  of  court,  the  court  shall,  upon  motion  of  the  plaintiff, 
order  judgment  for  the  plaintiff  by  default  which  shall  be  entered 
up\)ii  the  docket;  and  the  court  shall  thereupon  proceed  to  hear  the 
plaintiff  and  his  witnesses  and  assess  the  damages  or  determine  the 
other  relief  to  which  the  plaintiff  may  be  entitled,  including  the  costs 
of  the  action,  and  render  final  judgment  for  the  plaintiff  to  recover 
such  sum  or  to  receive  such  other  relief  as  the  pleadings  and  the  facts 
warrant.  If  the  taking  of  a  long  account  be  involved  in  determining 
the  amount  to  which  the  plaintiff  shall  be  entitled,  the  court  rna}^, 
in  its  discretion,  order  a  reference  to  some  suitable  person  to  take 
the  account  and  report  to  the  court  and  upon  the  coming  in  of  such 
report,  such  final  judgment  shall  be  rendered  as  the  facts  require. 

Sec  122.  Default  on  cross  complaint. — If  the  plaintiff  fails  to 
answer  a  cross  complaint  within  the  time  limited  by  the  rules  of  court, 
judgment  by  default  may  be  entered  against  him  upon  the  cross 
complaint  and  the  same  proceedings  shall  be  had  upon  such  default 
as  though  the  cross  complaint  had  been  the  original  complaint. 

Sec.  123.  Postponement. — The  court  may,  in  its  discretion,  for 
cause,  and  with  or  without  terms,  postpone  a  trial  from  day  to  clay, 
or  to  a  stated  time  during  the  term  of  the  court,  or  to  the  next 
succeeding  term. 

Sec.  124.  Adjournment. — Court  may  adjourn  from  day  to  day,  and 
to  any  stated  time,  as  the  expeditious  and  convenient  transaction  of 
business  may  require. 

Sec.  125.  Order  of  trial. — The  trial  must  proceed  in  the  following 
order,  unless  the  judge,  for  special  reasons,  otherwise  directs: 

1.  The  plaintiff,  after  stating  the  issue  and  his  case,  must  produce 
the  evidence  on  his  part;  but  he  may  read  the  complaint  as  his  state- 
ment of  the  case,  if  the  judge  so  directs; 

2.  The  defendant  shall  then  state  his  defense  and  offer  his  evidence 
in  support  thereof;  but  he  may  read  his  answer  as  his  statement  of 
defense,  if  the  judge  so  directs; 

3.  The  parties  may  then  respectively  offer  rebutting  evidence  only, 
unless  the  court,  for  good  reason,  in  the  furtherance  of  justice,  per- 
mits them  to  offer  evidence  upon  their  original  case; 


CODE    OP    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  31 

4.  When  the  evidence  is  concluded,  unless  the  parties  on  either  side 
or  both  sides  agree  to  submit  it  without  argument,  the  plaintiff  or  his 
counsel  may  make  the  opening  argument,  the  defendant  or  his  coun- 
sel may  follow,  and  the  plaintiff  or  his  counsel  may  conclude  the 
argument.  Two  counsel  may,  if  desired,  be  heard  upon  each  side, 
but  in  the  order  herein  prescribed ;  and  the  court  may  in  its  discre- 
tion limit  the  time  for  oral  argument; 

5.  If  several  defendants,  having  separate  defenses,  appear  by  dif- 
ferent counsel,  the  court  must  determine  their  relative  order  in  the 
evidence  and  argument,  but  in  any  event  the  plaintiff  is  entitled  to 
the  opening  and  closing  argument. 

Sec.  126.  Findings  of  facts. — Upon  the  trial  of  a  question  of  fact, 
the  decision  of  the  court  must  be  entered  on  the  record  by  the  clerk. 

Sec  127.  Agreed  statement  of  facts. — The  parties  may,  in  any 
action  or  special  proceeding,  agree,  in  writing,  upon  the  facts  in- 
volved in  the  litigation,  and  require  the  judgment  of  the  court  upon 
the  questions  of  law  arising  from  such  agreed  statement  of  facts, 
without  the  introduction  of  testimony.  The  ruling  and  judgment  of 
the  court  upon  such  agreed  statement  of  facts  shall  be  subject  to 
exception,  like  all  other  rulings  of  the  court.  When  an  agreed  state- 
ment of  facts  is  entered  into  by  the  parties,  no  other  finding  of  facts 
need  be  made  by  the  court. 

Sec  128.  Reference. — By  written  consent  of  both  parties,  filed  with 
the  clerk,  the  court  may  order  an  action  to  be  referred  to  one  or  more 
referees,  to  be  agreed  upon  by  the  parties  or  to  be  appointed  by  the 
court. 

Sec  129.  Commission  to  referees. — In  such  case,  the  clerk  shall 
issue,  under  the  seal  of  the  court,  a  commission  to  the  referee  or 
referees  named,  directing  them  to  proceed  with  the  trial  of  the  action 
and  to  report  the  findings  of  law  and  fact  to  the  court  at  or  before  a 
time  named  in  the  commission. 

Sec  130.  Oath  of  referees. — Eeferees,  before  commencing  the  per- 
formance of  their  duty,  shall  be  sworn  to  a  faithful  and  honest  per- 
formance thereof,  and  the  fact  that  they  have  taken  such  oath  shall 
be  certified  to  on  the  commission  by  the  authority  administering  the 
oath.  The  oath  may  be  administered  by  the  judge  or  clerk  of  the 
court,  or  by  any  district  judge  or  notary  public  in  the  administrative 
district. 

Sec  131.  Trial  before  referee. — Trial  may  occur  at  any  convenient 
place  within  the  circuit,  and  the  time  and  place  for  trial  shall  be  fixed 
by  the  referee  and  reasonable  notice  thereof  shall  be  given  by  him  to 
the  parties.  The  referee  is  hereby  authorized  to  administer  oaths 
to  witnesses,  and  the  trial  before  him  shall  proceed  in  all  respects 
as  though  the  same  had  been  had  before  the  court. 


32  CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  132.  Report  of  referee. — Upon  the  completion  of  the  trial,  the 
referee  shall  report,  in  writing,  to  the  court  the  facts  found  by  him 
and  such  of  his  rulings  as  the  parties  shall  request  him  to  report. 

Sec.  133.  Hearing  upon  report. — Upon  the  filing  of  the  report  or 
as  soon  as  conveniently  may  be  thereafter,  the  court  shall  render 
judgment  in  accordance  with  the  report,  as  though  the  facts  had  been 
found  by  the  judge  himself,  unless  the  court  shall,  for  cause  shown, 
set  aside  the  report,  or  modify  and  change  the  same  in  whole  or  in 
part  and  then  enter  judgment  thereon,  or  order  it  to  be  recommitted 
to  the  referee  for  further  findings. 

Sec.  134.  Exceptions. — An  exception  is  an  objection  upon  a  matter 
of  law  to  a  decision  made  by  a  court,  tribunal,  judge,  or  other  judi- 
cial officer  in  an  action  or  proceeding.  Rulings  of  the  court  upon 
minor  matters,  such  as  adjournments,  postponements  of  trials,  the 
extension  of  time  for  filing  pleadings  or  motions,  and  other  matters 
addressed  to  the  discretion  of  the  court  in  the  performance  of  its 
duty,  shall  not  be  subject  to  exception.  But  exception  may  be  taken 
to  any  other  ruling,  order,  or  judgment  of  the  court  made  during 
the  pendency  of  the  action  in  the  Circuit  Court. 

Sec.  135.  Manner  of  taking  exceptions. — The  party  excepting  to 
the  ruling,  order,  or  judgment,  shall  forthwith  inform  the  court  that 
he  excepts  to  the  ruling,  order,  or  judgment,  and  the  judge  shall 
thereupon  minute  the  fact  that  the  party  has  so  excepted;  but  the 
trial  shall  not  be  delayed  thereby.  The  exception  shall  also  be  re- 
corded by  the  stenographer,  if  one  is  officially  connected  with  the 
court. 

Sec.  136.  Perfecting  bill  of  exceptions. — Upon  the  rendition  of 
final  judgment  disposing  of  an  action,  either  party  shall  have  the  right 
to  perfect  a  bill  of  exceptions  for  a  review  by  the  Supreme  Court  of 
all  rulings,  orders,  and  judgments,  made  in  the  action,  to  which  the 
party  has  duly  excepted  at  the  time  of  making  such  ruling,  order, 
or  judgment.  The  party  desiring  to  prosecute  the  bill  of  exceptions 
shall  so  inform  the  court  at  the  time  of  the  rendition  of  final  judg- 
ment, or  as  soon  thereafter  as  may  be  practicable  and  before  the  end- 
ing of  the  term  of  court  at  which  final  judgment  is  rendered,  and  the 
judge  shall  enter  a  memorandum  to  that  effect  upon  his  minutes  and 
order  a  like  memorandum  to  be  made  by  the  clerk  upon  the  docket 
of  the  court  among  the  other  entries  relating  to  the  action.  Within 
ten  days  after  the  entry  of  the  memorandum  aforesaid,  the  excepting 
party  shall  cause  to  be  presented  to  the  judge  a  brief  statement  of 
the  facts  of  the  case  sufficient  to  show  the  bearing  of  the  rulings, 
orders,  or  judgments  excepted  to,  and  a  specific  statement  of  each 
ruling,  order,  or  judgment  that  has  been  excepted  to,  for  allowance 
by  the  judge.     The  judge  shall  thereupon,  after  reasonable  notice 


CODE    OP    CIVIL   PROCEDURE    OF   THE    CANAL   ZONE.  33 

to  both  parties  and  within  five  days  from  the  presentation  of  the  bill 
of  exceptions  to  him,  restate  the  facts  if  need  be,  and  the  exceptions, 
so  that  the  exceptions  of  law  therein  involved,  and  their  relevancy 
shall  all  be  made  clear.,  and  when  the  bill  of  exceptions  has  been 
perfected  and  allowed  by  the  judge,  he  shall  certify  that  it  has  been 
so  allowed  and  the  bill  of  exceptions  shall  be  filed  with  the  other 
papers  in  the  action,  and  the  same  shall  thereupon  be  transferred 
to  the  Supreme  Court  for  determination  of  the  questions  of  law 
involved.  A  bill  of  exceptions  may  likewise  be  made  to  consist  of 
the  judge's  findings  of  fact  in  his  final  judgment  and  a  statement  of 
all  the  exceptions  reserved  by  the  party  desiring  to  prosecute  the 
bill  of  exceptions,  which  shall  be  allowed  and  filed  by  the  judge  as 
above  in  this  section  provided. 

Immediately  upon  the  allowance  of  a  bill  of  exceptions  by  the 
judge,  it  shall  be  the  duty  of  the  clerk  to  transmit  to  the  clerk  of  the 
Supreme  Court,  a  complete  transcript  of  the  record,  including  therein 
the  bill  of  exceptions,  and  of  all  documents  which  by  the  bill  of  excep- 
tions are  made  a  part  of  it,  but  the  substance  of  documents  may  be 
shown,  except  when  in  the  opinion  of  the  judge  an  exhibition  of  the 
entire  document  or  specified  parts  thereof  is  necessary  to  full  under- 
standing of  the  case.  The  cause  shall  be  heard  in  the  Supreme  Court 
upon  the  record  so  transmitted. 

Sec.  137.  Stay  of  execution. — Except  by  special  order  of  the  court, 
no  execution  shall  issue  upon  a  final  judgment  rendered  in  a  Circuit 
Court  until  after  the  period  for  perfecting  a  bill  of  exceptions  has 
expired.  But  the  filing  of  a  bill  of  exceptions  together  with  a  bond 
to  be  fixed  by  the  court  and  by  it  approved,  shall  stay  execution  until 
the  final  determination  of  the  action,  unless  for  special  reasons  stated 
in  the  bill  of  exceptions  the  court  shall  order  that  execution  be  not 
stayed,  in  which  event  execution  may  issue  at  once.  The  court  shall 
require  as  a  condition  of  a  stay  of  execution  that  a  bond  shall  be 
given,  reasonably  sufficient  to  secure  the  performance  of  the  judg- 
ment appealed  from  in  case  it  be  affirmed  in  part  or  wholly  and  the 
payment  of  costs. 

Sec  138.  New  trial. — At  any  time  during  the  term  at  which  an 
action  has  been  tried  in  a  Circuit  Court,  the  judge  thereof  may  set 
aside  the  judgment  and  grant  a  new  trial,  upon  such  terms  as  may 
be  just,  on  the  application  of  the  party  aggrieved,  and  after  due  no- 
tice to  the  adverse  party  in  the  following  cases : 

1.  Accident  or  surprise  which  ordinary  prudence  could  not  have 
guarded  against,  and  by  reason  of  which  the  party  applying  has 
probably  been  impaired  in  his  rights ; 

2.  Newly  discovered  evidence,  material  to  the  party  making  the 
application,  which  he  could  not,  with  reasonable  diligence,  have  dis- 
covered and  produced  at  the  trial ; 


34  CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

3.  Because  the  judge  has  become  satisfied  that  excessive  damages 
have  been  awarded,  or  that  the  evidence  was  insufficient  to  justify  the 
judgment,  or  that  it  is  against  the  law. 

Sec.  139.  Method  of  procedure  in  applications  for  new  trial. — The 
application  shall  be  made  by  motion  in  writing,  stating  the  ground 
therefor,  of  which  the  adverse  party  shall  have  such  reasonable 
notice  as  the  judge  may  direct.  When  the  application  is  made  for  a 
cause  mentioned  in  the  first  or  second  subdivisions  of  the  last  section, 
it  must  be  made  upon  affidavits,  and  counter  affidavits  from  the  ad- 
verse party  may  likewise  be  received;  the  overruling  or  granting  of 
a  motion  for  a  new  trial  shall  be  a  ground  of  exception,  but  no  appeal 
or  bill  of  exceptions  to  the  Supreme  Court  shall  be  allowed  or  neces- 
sary before  final  judgment  is  entered. 

Sec.  140.  Effect  of  granting  a  motion  for  a  new  trial. — If  a  new 
trial  shall  be  granted  the  original  judgment  shall  be  vacated,  and  the 
action  shall  stand  for  trial  de  novo ;  but  the  recorded  evidence  taken 
upon  the  former  trial,  so  far  as  the  same  is  admissible  and  competent 
to  establish  the  issues,  shall  be  used  upon  the  new  trial  without  retak- 
ing the  same. 

Sec  141.  Belief  from  judgments  of  subordinate  tribunals,  obtained 
by  fraud,  accident,  or  mistake. — When  a  judgment  has  been  rendered 
by  a  district  judge,  or  any  other  subordinate  tribunal,  and  any 
party  to  the  action  has  been  unjustly  deprived  of  his  day  in  court  and 
an  opportunity  to  be  heard  thereon,  by  fraud,  accident,  mistake,  or 
excusable  negligence,  or  has  been  prevented  from  entering  an  appeal 
from  such  judgment  by  fraud,  accident,  mistake,  or  excusable  negli- 
gence, the  Circuit  Court  may,  in  its  discretion,  and  on  reasonable 
terms,  reverse  and  set  aside  the  judgment  so  rendered,  and  hear  and 
determine  the  action  and  make  the  necessary  orders  therein,  as  if  the 
same  had  been  brought  to  the  Circuit  Court  by  appeal,  provided  the 
party  so  aggrieved  shall  make  application,  as  hereinafter  provided, 
to  the  Circuit  Court  and  within  sixty  days  after  he  first  knows  that 
such  judgment  has  been  rendered  against  him.  This  section  shall  be 
liberally  construed  so  as  to  prevent  injustice. 

Sec  14k2.  Procedure  to  vacate  such  judgment. — The  person  ag- 
grieved by  a  judgment  obtained  in  the  manner  stated  in  the  preceding- 
section  may,  within  the  time  limited,  file  his  complaint  in  the  Cir- 
cuit Court  of  the  district  in  which  the  original  judgment  was  ren- 
dered, stating  the  fact  of  the  rendition  of  such  judgment  and  the 
circumstances  constituting  the  fraud,  accident,  mistake,  or  excusable 
negligence  relied  upon  as  ground  for  relief,  and  praying  that  such 
judgment  may  be  reversed  and  set  aside  and  the  cause  be  determined 
upon  its  merits.  The  party  against  whom  the  complaint  is  made 
shall  be  served  with  notice  as  in  other  actions  pending  in  the  Circuit 
Court,  and  the  trial  shall  proceed  as  in  other  actions  in  that  court. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  35 

If  the  court  shall  find  that  the  facts  set  forth  in  the  complaint  are 
true  and  that  the  complainant  is  entitled  to  relief,  the  judgment 
complained  of  shall  be  reversed  and  set  aside,  and  shall  thereafter  be 
of  no  validity,  and  the  court  shall  proceed  to  hear  and  determine  the 
action  upon  its  merits,  and  make  the  necessary  orders  therein,  as  if 
the  same  had  been  regularly  brought  to  said  court  by  appeal. 

Sec.  143..  Temporary  injunction  in  such  cases. — At  the  time  of 
filing  such  complaint,  or  at  any  time  thereafter  before  final  hearing, 
the  judge  of  the  Circuit  Court  in  which  the  action  is  pending,  may 
grant  an  injunction  restraining  the  party  in  whose  favor  such  judg- 
ment has  been  rendered,  his  agents  and  attorneys  and  the  district  judge 
or  other  inferior  tribunal  rendering  the  judgment,  from  any  further 
proceedings  to  enforce  the  same  until  the  further  order  of  the  court  in 
the  premises,  which  injunction  shall  be  served  in  the  manner  pro- 
vided by  law  for  serving  process;  but  the  judge  issuing  such  injunc- 
tion shall,  before  issuing  it,  take  from  the  party  upon  whose  applica- 
tion the  same  is  granted,  an  obligation  to  the  other  party,  with 
sufficient  sureties,  to  be  approved  by  the  judge,  conditioned  that  if  the 
complainant  fails  to  prosecute  his  complaint  with  effect,  or  finally  to 
recover  in  such  action,  he  will  pay  the  adverse  party  the  intervening 
damages  and  cost  accruing  to  him  by  reason  of  the  issuing  of  such  in- 
junction, together  with  the  amount  of  the  original  judgment,  but  such 
injunction  shall  not  operate  to  discharge  or  release  bail  or  extinguish 
any  lien  which  the  party  enjoined  has  acquired  upon  the  property  of 
the  plaintiff  by  attachment  or  levy  of  execution.  The  damages,  if 
any,  accruing  under  this  section  shall  be  assessed  by  the  judge  and 
included  in  his  final  judgment  in  the  action. 

Sec  144.  Final  judgment  in  such  proceedings. — If  the  plaintiff 
shall  prevail  in  such  action,  the  original  judgment  shall  be  reversed 
and  vacated,  and  the  defendant  therein  and  the  municipal  judge  or 
other  inferior  tribunal  that  rendered  the  judgment  shall  be  perpetu- 
ally enjoined  from  any  further  steps  to  enforce  the  same.  The 
costs  of  such  proceedings  shall  be  awarded  in  the  discretion  of  the 
court,  in  such  manner  as  justice  requires. 

Sec  145.  Attendance  of  the  district  judge. — Upon  the  trial  of  an 
action  instituted  in  pursuance  of  the  preceding  sections,  the  dis- 
trict judge  or  other  subordinate  magistrate  or  official  who  rendered 
the  judgment  complained  of,  shall  attend  and  produce  before  the 
court  all  the  papers  in  the  original  action,  if  required  to  do  so  by  the 
judge. 

Chapter  VIII. 

ABATEMENT. 

Sec  146.  Neiv  action  within  one  year  from  death  of  party. — If  a 
person  entitled  to  bring  an  action,  die  before  the  expiration  of  the 


3(>  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

term  limited  for  the  commencement  thereof,  and  the  cause  of  action 
survive,  an  action  may  be  commenced  by  his  representatives,  after 
the  expiration  of  that  time,  and  within  one  year  from  his  death. 
If  a  person  against  whom  an  action  may  be  brought  die  before  the 
expiration  of  the  time  limited  for  the  commencement  thereof,  an 
action  may  be  commenced  against  his  representatives  after  the 
expiration  of  that  time,  and  within  one  year  after  the  issuing  of 
letters  testamentary  or  of  administration. 

Sec.  147.  Extension  of  time  to  aliens,  etc. — When  a  person  is  an 
alien  subject,  or  a  citizen  of  a  country  at  war  with  the  United  States, 
the  time  of  the  continuance  of  the  war  is  not  a  part  of  the  period 
limited  for  the  commencement  of  the  action. 

Sec  148.  Where  judgment  reversed. — If  an  action  is  commenced 
within  the  time  prescribed  therefor,  and  a  judgment  therein  for  the 
plaintiff  be  reversed  on  appeal,  the  plaintiff,  or,  if  he  die  and  the 
cause  of  action  survive,  his  representatives  may  commence  a  new 
action  within  one  year  after  the  reversal. 

Sec  149.  Where  action  stayed. — When  the  commencement  of  an 
action  is  stayed  by  injunction  or  statutory  prohibition,  the  time  of 
the  continuance  of  the  injunction  or  prohibition  is  not  part  of  the 
time  limited  for  the  commencement  of  the  action. 

Sec  150.  Marriage,  female  party. — No  action,  proceeding  or  com- 
plaint, commenced  by  or  against  a  feme  sole,  either  alone  or  with 
others,  shall  abate  on  account  of  her  intermarriage  before  final  judg- 
ment, but  she  may  continue  to  prosecute  or  defend  the  same  in  like 
manner  as  if  she  were  sole. 

Sec  151.  Death  of  coplaintiff . — When  there  is  but  one  plaintiff, 
petitioner  or  complainant  in  an  action,  proceeding  or  complaint,  and 
he  shall  die  before  final  judgment  or  decree,  such  action,  proceeding 
or  complaint  shall  not  on  that  account  abate,  if  the  cause  of  action 
survive  to  the  heir,  devisee,  executor  or  administrator  of  such  dece- 
dent, but  any  of  such  to  whom  the  cause  of  action  shall  survive, 
may,  by  suggesting  such  death  upon  the  record,  be  substituted  as 
plaintiff,  petitioner  or  complainant,  and  prosecute  the  same  as  in 
other  cases. 

Sec  152.  Death  of  codefendant. — When  there  is  but  one  defendant 
in  an  action,  proceeding  or  complaint,  and  he  dies  before  final  judg- 
ment or  decree,  such  action,  proceeding  or  complaint  shall  not  on 
that  account  abate,  if  it  might  be  originally  prosecuted  against  the 
heir,  devisee,  executor  or  administrator  of  such  defendant,  but  the 
plaintiff,  petitioner  or  complainant  may  suggest  such  death  on 
the  record,  and  shall,  by  order  of  the  court,  have  summons  against 
such  person  or  legal  representative,  requiring  him  to  appear  and 
defend  the  action,  proceeding  or  complaint,  after  which  it  may  pro- 
ceed as  if  it  had  been  originally  commenced  against  him. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL,   ZONE.  37 

Sec.  153.  Surviving  parties. — -When  there  are  several  plaintiffs,  pe- 
titioners or  complainants,  or  defendants  in  an  action,  proceeding  or 
complaint,  the  cause  of  which  survives,  and  any  of  them  die  before 
final  judgment  or  decree,  the  action,  proceeding  or  complaint  shall 
not  on  that  account  abate,  but  such  death  may  be  suggested  on  the 
record,  and  the  cause  proceed  at  the  suit  of  the  surviving  plaintiff, 
petitioner  or  complainant,  or  against  the  surviving  defendant,  as  the 
case  may  be,  in  all  cases  as  if  such  persons  had  been  originally  sole 
parties  to  the  suit. 

Sec.  154.  Same. — If,  in  the  case  mentioned  in  the  preceding  section 
all  the  plaintiffs,  petitioners  or  complainants,  or  all  the  defendants 
die,  the  cause  may  be  prosecuted  or  defended  by  or  against  the  heir, 
devisee,  executor  or  administrator  of  the  last  surviving  plaintiff,  peti- 
tioner, complainant  or  defendant  respectively,  to  or  against  whom  the 
cause  survives,  in  like  manner  as  if  the  survivor  had  been  originally 
the  only  plaintiff,  petitioner,  complainant  or  defendant. 

Sec  155.  Ejectment,  death  of  plaintiff. — If  there  are  several  plain- 
tiffs in  an  action  of  ejectment,  or  an  ordinary  action  for  the  recovery 
of  real  property  or  any  interest  therein,  and  any  of  them  dies  before 
final  judgment,  the  death  of  such  party  may  be  suggested  on  the  rec- 
ord, and  the  heir  or  devisee  of  the  deceased  party  shall  be  admitted  to 
prosecute  the  suit  jointly  with  the  survivor,  in  the  same  manner  as  if 
he  had  originally  joined  with  him  in  commencing  the  action. 

Sec.  15G.  Rights  of  surviving  plaintiff. — If  the  interest  of  the  de- 
ceased party  passes  to  the  surviving  plaintiff,  or  if  the  heir  or  devisee 
of  the  deceased  party  does  not,  within  a  reasonable  time,  to  be  fixed 
•  by  the  court,  join  in  the  prosecution  of  the  suit,  the  surviving  plain- 
tiff may  prosecute  the  suit  for  so  much  of  the  premises  in  question  as 
may  then  be  claimed  by  him. 

Sec  157.  Ejectment,  death  of  codefendant. — In  case  of  the  death 
of  any  several  defendants  in  an  action  of  ejectment,  or  an  ordinary 
action  for  the  recovery  of  real  property  or  any  interest  therein,  the 
action  may  be  prosecuted  against  the  other  defendants  for  so  much  of 
the  premises  as  they  hold  or  claim;  or,  the  death  being  suggested,  the 
heir,  or  devisee  of  the  deceased  party  may  be  made  co-defendant  with 
•the  others,  and  the  suit  proceed  the  same  as  if  such  heir  or  devisee  had 
originally  been  made  co-defendant. 

Sec  158.  Where  cause  of  action  does  not  survive  to  co-party. — 
When  there  are  several  complainants  or  defendants  in  a  suit  or 
proceeding,  and  any  of  them  may  die,  and  the  cause  of  action  does 
not  survive  to  the  surviving  complainant  or  against  the  surviving 
defendant,  and  any  other  persons  become  interested  therein  in  con- 
sequence of  such  decease,  such  suit  or  proceeding  shall,  by  reason 
of  such  death,  be  abated  only  with  respect  to  such  deceased  party; 
and  the  person  or  legal  representative  so  becoming  interested  may 
be  made  a  party  to  such  suit  or  proceeding  in  the  same  manner  as 


38  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

in  the  case  of  the  death  of  a  sole  complainant  or  defendant;  or  the 
suit  or  proceeding  may  be  prosecuted  by  the  surviving  complain- 
ant against  the  surviving  defendant  without  reviving  the  same  in 
favor  of  or  against  the  person  or  legal  representative  so  becoming 
interested  therein;  but  in  the  latter  case  such  interested  person  or 
legal  representative,  not  made  a  party,  shall  not  be  bound  by  any 
order  or  decree  made  in  the  cause. 

Sec.  159.  Death  of  personal  representative. — When  an  executor, 
administrator,  guardian  or  conservator  is  plaintiff,  petitioner  or  com- 
plainant, or  defendant  in  a  suit  or  proceeding,  and  dies,  resigns,  or 
is  removed  from  office  before  final  judgment  or  decree,  the  suit  or 
proceeding  shall  not  on  that  account  abate,  but  the  same  may  be  con- 
tinued by  or  against  his  successor,  in  like  manner  as  in  case  of  the 
death  of  other  parties. 

Sec.  160.  Death  of  public  officer  or  trustee. — When  an  action,  pro- 
ceeding or  complaint,  in  law  or  equity,  is  authorized  or  directed  by 
law  to  be  brought  by  or  in  the  name  of  any  public  officer,  or  by  any 
trustee  appointed  by  virtue  of  any  statute,  and  such  officer  or  trustee 
dies  or  ceases  to  be  such  officer  or  trustee  before  final  judgment  or  de- 
cree, the  suit  shall  not  on  that  account  abate,  but  the  same  may  be 
continued  by  his  successor,  in  like  manner  as  in  case  of  the  death  of 
other  parties. 

Sec.  161.  Party  becoming  insane. — If,  during  the  pendency  of  an 
action,  proceeding  or  complaint,  either  party  becomes  insane,  the 
cause  may  be  prosecuted  or  defended  by  his  conservator  in  like  man- 
ner as  by  an  executor  or  administrator  in  case  of  the  death  of  a  party, 
or  the  court  may  appoint  a  guardian  ad  litem,  as  the  case  may  re- 
quire. 

Sec.  1(52.  No  abatement  in  partition  suits. — No  plea  in  abatement 
shall  be  received  in  any  suit  for  partition,  nor  shall  such  suit  abate 
by  the  death  of  any  tenant. 

Sec.  163.  Same. — No  suit  for  the  partition  of  land  shall  abate  on 
account  of  the  death  of  any  party  thereto,  but  it  may  be  continued  in 
the  names  of  the  survivors,  if  the  interest  of  such  deceased  person 
survives  to  them;  and  if  such  interest  passes  to  other  persons  they 
may  be  made  parties  in  like  manner  as  in  the  case  of  the  death  of 
other  parties,  and  the  same  proceedings  may  be  had  as  if  they  had 
been  made  parties  originally. 

Sec.  164.  Where  action  brought  for  another. — No  suit,  instituted 
in  the  name  of  one  for  the  use  of  another,  shall  abate  by  reason  of  the 
death  of  the  person  whose  name  is  used ;  but  it  may  be  continued  by 
the  real  plaintiff  in  interest,  in  his  own  name,  on  his  suggesting  such 
death  on  the  record,  and  an  order  of  the  court  being  made,  substitut- 
ing his  name  for  that  of  the  deceased  plaintiff. 

Sec.  165.   Writs  of  error,  etc. — These  provisions  shall  apply  to  all 


CODE    OF    CIVIL   PROCEDURE    OF   THE    CANAL    ZONE.  39 

appeals,  writs  of  error  and  of  certiorari,  so  far  as  the  same  may  be 
made  applicable. 

Sec.  166.  Process  to  any  circuit. — Process  may  be  sued  out,  and 
may  be  directed  to  any  circuit,  and  shall  correspond,  as  nearly  as  may 
be,  to  the  original  writ,  and  may  be  executed  and  returned  in  the  same 
manner. 

Sec.  167.  Disability,  when  available. — No  person  can  avail  himself 
of  a  disability,  unless  it  existed  when  his  right  of  action  accrued. 

Sec  168.  Two  or  more  disabilities. — When  two  or  more  disabilities 
co-exist  at  the  time  the  right  of  action  accrues,  the  limitation  does  not 
attach  until  they  are  removed. 

Sec  169.  Directors  and  stockholders  of  corporations. — This  chap- 
ter does  not  affect  actions  against  directors  or  stockholders  of  a  cor- 
poration, to  recover  a  penalty  or  forfeiture  imposed,  or  to  enforce  a 
liability  created  by  law ;  but  such  actions  must  be  brought  within 
three  years  after  the  discovery  by  the  aggrieved  party  of  the  facts 
upon  which  the  penalty  or  forfeiture  attached  or  the  liability  was 
created. 

Sec  170.  Acknowledgment  or  new  promise  must  be  in  writing. — 
No  acknowledgment  or  promise  is  sufficient  evidence  of  a  new  or  con- 
tinuing contract,  unless  the  same  is  contained  in  some  writing  signed 
by  the  party  to  be  charged  thereby,  or  his  agent  duly  authorized  in 
writing,  or  his  attorney  in  fact. 

Sec  171.  Where  cause  of  action  arises  in  foreign  country. — When 
a  cause  of  action  has  arisen  in  a  State  or  Territory  of  the  United 
States,  or  in  a  foreign  country,  and  b}^  the  laws  thereof  an  action 
thereon  can  not  be  maintained  against  a  person  by  reason  of  the  lapse 
of  time,  an  action  thereon  shall  not  be  maintained  against  him  in  the 
Canal  Zone,  except  in  favor  of  one  who  has  been  a  resident  of  said 
Canal  Zone,  and  who  has  held  the  cause  of  action  from  the  time  it 
accrued. 

Sec  172.  Definition. — The  word  "  action  "  as  used  in  this  chapter, 
is  to  be  construed,  whenever  it  is  necessary  to  do  so,  as  including  a 
special  proceeding  of  a  civil  nature. 

Chapter  IX. 
SPECIAL  REMEDIES. 

Injunctions — Receivers — Partition  or  real  estate — Usurpation 

of    office    or    franchise certiorari    proceedings— mandate 

Prohibition  —  Contempt  —  Eminent    domain  —  Foreclosure  — 
Manual  delivery  of  personal  property. 

Injunctions. 

Sec  173.  Injunction  defined. — An  injunction  is  a  writ  or  order 
requiring  a  person  to  refrain  from  a  particular  act,  or,  if  mandatory, 


40  CODE    OF    CIVIL   PKOCEDURE    OP    THE    CANAL   ZONE. 

commanding  the  defendant  to  do  a  particular  thing.    It  may  be  of 
two  kinds : 

1.  A  preliminary  injunction  is  one  granted  at  any  stage  of  an 
action  prior  to  final  judgment; 

2.  A  final  injunction  is  one  granted  in  the  final  judgment  as  the 
relief,  or  a  part  of  the  relief,  granted  as  a  result  of  the  action. 

Sec.  174.  Who  may  grant  an  injunction. — A  preliminary  injunc- 
tion may  be  granted  by  any  judge  of  the  Circuit  Court  in  any  action 
pending  in  the  Circuit  Court  in  any  circuit  of  the  Canal  Zone  in 
which  he  has  original  jurisdiction;  in  case  of  his  absence,  by  any 
Circuit  Judge  of  the  Canal  Zone  present  on  the  Zone  and  not  dis- 
qualified. 

Sec  175.  Circumstances  under  which  a  preliminary  injunction 
may  be  granted. — A  preliminary  injunction  may  be  granted  when 
it  is  established,  in  the  manner  hereinafter  provided,  to  the  satisfac- 
tion of  the  judge  granting  it : 

1.  That  the  plaintiff  is  entitled  to  the  relief  demanded  and  such 
relief,  or  any  part  thereof,  consists  in  restraining  the  commission 
or  continuance  of  the  acts  complained  of  either  for  a  limited  period 
or  perpetually; 

2.  That  the  commission  or  continuance  of  some  act  complained  of 
during  the  litigation  would  probably  work  injustice  to  the  plaintiff; 

3.  That  the  defendant  is  doing,  or  threatens,  or  is  about  to  do,  or 
is  procuring  or  suffering  to  be  done,  some  act  probably  in  violation 
of  the  plaintiff's  rights,  respecting  the  subject  of  the  action,  and  tend- 
ing to  render  the  judgment  ineffectual. 

4.  No  mandatory  injunction,  or  injunctions  requiring  the  per- 
formance of  some  affirmative  act,  will  be  granted  before  final  hearing, 
and  will  be  ordered  to  issue  only  by  final  decree. 

Sec.  176.  Time  of  granting  preliminary  injunction. — A  prelimi- 
nary injunction  may  be  granted  at  any  time  after  the  commencement 
of  the  action  and  before  final  judgment. 

Sec  177.  Method  of  obtaining  preliminary  injunction. — A  prelim- 
inary injunction  may  be  granted  only  when  the  following  conditions 
are  complied  with : 

1.  The  complaint  must  show  facts  entitling  the  plaintiff  to  the 
relief  demanded; 

2.  The  complaint  must  be  verified  by  the  oath  of  the  plaintiff  or 
by  that  of  some  other  person  by  him  duly  authorized  and  who  can 
testify  to  the  truth  of  the  facts  set  forth  in  the  complaint ; 

3.  The  plaintiff  must  file  with  the  clerk  of  the  court  in  which  the 
action  is  pending  a  written  obligation  on  the  part  of  the  plaintiff 
with  sufficient  sureties,  to  the  effect  that  the  plaintiff  will  pay,  to  the 
party  enjoined  all  such  damages  as  such  party  may  sustain  by  reason 
of  the  injunction,  if  the  court  should  finally  decide   that  the  plaintiff 


CODE    OF    CIVIL   PROCEDURE    OF   THE    CANAL    ZONE.  41 

was  not  entitled  thereto.  The  sufficiency  of  the  obligation  must  be 
approved  in  writing  by  the  judge  granting  the  injunction,  and  before 
approval  he  shall  require  such  proof  as  is  necessary  in  regard  to  the 
sufficiency  of  the  sureties.  The  sureties,  by  executing  the  obligation, 
become  quasi  parties  to  the  proceeding,  so  that  a  judgment  may  be 
rendered  against  them  without  further  notice. 

Sec.  178.  Proceeding  in  case  of  insufficient  sureties. — If  it  shall 
be  made  to  appear  at  any  time  during  the  progress  of  the  action  that 
the  sureties  on  the  obligation  provided  in  the  last  section  are  insuffi- 
cient, the  judge  of  the  court  in  which  the  action  is  pending  may, 
upon  motion,  order  new  sureties  to  be  provided;  and,  if  no  sureties 
are  provided  within  a  time  fixed  by  the  order  of  the  court  for  that 
purpose,  the  injunction  shall  be  dissolved. 

Sec.  179.  Notice  to  defendant  of  preliminary  injunction.— -The 
injunction  hereinbefore  provided  may  be  granted  ex  parte  on  the 
application  of  the  plaintiff,  on  the  conditions  before  stated,  but  if 
the  judge  to  whom  application  is  made  for  the  granting  of  the  in- 
junction deems  it  just  that  the  defendant  should  be  heard  before 
granting  the  injunction,  an  order  may  be  made  requiring  cause  to  be 
shown,  at  a  specified  time  and  place,  why  the  injunction  should  not 
be  granted,  and  the  defendant  may  then  and  there  be  heard  and 
the  injunction  may  be  granted  or  refused  as  justice  shall  require. 
If  upon  such  hearing  it  should  be  made  to  appear  to  the  satisfaction 
of  the  court  that  the  plaintiff  is  entitled  to  the  injunction,  but  that 
the  issuance  thereof  pending  the  litigation  would  entail  great  damage 
upon  the  defendant,  and  that  the  plaintiff  could  be  fully  compensated 
for  such  damages  as  he  might  suffer,  the  judge  may  refuse  the  in- 
junction, upon  the  defendant  giving  an  obligation  with  sureties  to 
be  approved  by  the  judge  in  such  amount  as  may  be  fixed  by  the 
judge,  conditioned  that  the  defendant  will  pay  all  damages  which 
the  plaintiff  may  suffer  by  reason  of  the  continuance  during  the 
litigation  of  the  acts  complained  of. 

Sec  180.  Dissolution  of  temporary  injunctions. — If  a  temporary 
injunction  be  granted  without  notice,  the  defendant,  at  any  time 
before  the  trial,  may  apply,  upon  reasonable  notice  to  the  adverse 
party,  to  the  judge  who  granted  the  injunction,  or  to  the  judge  of  the 
court  in  which  the  action  was  brought,  to  dissolve  or  modify  the 
same.  The  application  may  be  based  upon  the  insufficiency  of 
the  complaint  on  which  the  injunction  was  granted  or  upon  affidavit 
on  the  part  of  the  defendant,  with  or  without  an  answer.  If  the 
application  be  made  upon  affidavits  upon  the  part  of  the  defendant, 
but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits 
or  other  evidence  to  substantiate  the  facts  set  forth  in  the  complaint, 
and  the  judge  shall,  after  hearing,  dissolve  or  modify  or  continue 
the  injunction  as  justice  may  require.     If  it  be  made  to  appear  to  the 


42  CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

judge  that  great  damage  will  be  suffered  by  the  defendant  in  case 
the  injunction  is  continued  and  that  the  plaintiff  can  be  fully  com- 
pensated for  any  damages  he  may  suffer  by  reason  of  the  continuance 
of  the  acts  of  the  defendant  during  the  pendency  of  the  litigation, 
the  judge  in  his  discretion  may  dissolve  or  modify  the  injunction, 
upon  the  defendant  giving  an  obligation,  with  sureties  to  be  ap- 
proved by  the  judge,  that  the  defendant  will  pay  all  damages  which 
the  plaintiff  may  suffer  by  reason  of  the  continuance  during  the 
litigation  of  the  acts  complained  of. 

Sec.  181.  Damages  pending  a  preliminary  injunction. — Upon  final 
trial  the  amount  of  damages  to  be  awarded  to  the  plaintiff  or  to  the 
defendant  upon  the  obligation  hereinbefore  required,  shall  be  ascer- 
tained by  the  court  trying  the  action,  and  judgment  for  the  same 
shall  be  included  in  the  final  judgment  and  the  judgment  shall  be 
both  against  the  plaintiff  and  against  the  sureties  upon  any  obliga- 
tion given. 

Sec  182.  Final  injunctions. — If  upon  the  final  trial  of  the  action  it 
shall  appear  that  the  plaintiff  is  entitled  to  an  injunction  perpetually 
restraining  the  commission  or  continuance  of  the  act  complained  of, 
the  court  shall  grant  a  final  injunction  perpetually  restraining  the 
defendant  from  continuing  the  act. 

Sec  183.  Method  of  enforcing  injunctions. — A  person  violating 
an  injunction  shall  be  treated  as  in  contempt  of  court  and  dealt  with 
as  hereinafter  provided  under  the  head  of  "  Contempt." 

Receivers. 

Sec  184.  Receivers,  who  may  appoint. — A  judge  of  the  Circuit 
Court  in  which  the  action  is  pending,  may  appoint  one  or  more 
receivers  of  the  property,  real,  personal,  or  mixed,  which  is  the 
subject  of  the  action,  in  the  manner  and  under  the  conditions  herein- 
after provided. 

Sec  185.  When  a  receiver  may  he  appointed. — A  receiver  may  be 
appointed  in  the  following  cases : 

1.  When  a  corporation  has  been  dissolved,  or  is  insolvent,  or  is  in 
imminent  danger  of  insolvency,  or  has  forfeited  its  corporate  rights ; 

2.  When  it  is  made  to  appear  by  the  complaint  or  answer,  and  by 
such  other  proof  as  the  judge  may  require,  that  the  party  making 
the  application  for  the  appointment  of  receiver  has  an  interest  in  the 
property  or  fund  which  is  the  subject  of  the  action  and  it  is  shown 
that  the  property  or  fund  is  in  danger  of  being  lost,  removed,  or 
materially  injured  unless  a  receiver  shall  be  appointed  to  guard  and 
preserve  it ; 

3.  In  an  action  by  the  mortgagee  for  the  foreclosure  of  a  mortgage, 
where  it  appears  that  the  property  is  in  danger  of  being  wasted  or 
materially  injured,  and  that  its  value  is  probably  insufficient  to 
discharge  the  mortgage  debt; 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  43 

1.  Whenever  in  other  cases  it  shall  be  made  to  appear  to  the  court 
that  the  appointment  of  a  receiver  is  the  most  convenient  and  feasible 
means  of  preserving  and  administering  the  property  which  is  the 
subject  of  litigation  during  the  pendency  of  the  action. 

Sec.  186.  General  powers  of  a  receiver.— -The  receiver  shall  have, 
under  the  control  of  the  court  in  which  the  action  is  pending,  power 
to  bring  and  defend  actions  in  his  own  name,  as  receiver;  to  take  and 
keep  possession  of  the  property  in  controversy;  to  receive  rent,  to 
collect  the  same  due  to  himself  as  receiver,  or  to  the  fund,  property, 
estate,  person,  or  corporation  of  which  he  is  receiver;  to  compound 
for  and  compromise  the  same ;  to  make  transfers ;  and  generally  to  do 
such  acts  respecting  the  property  as  the  court  may  authorize. 

Sec.  187.  Receivers  of  a  corporation. — -When  a  corporation  has  been 
dissolved,  or  is  insolvent,  or  is  in  imminent  danger  of  insolvency,  or 
has  forfeited  its  corporate  rights,  the  Circuit  Court  where  the  cor- 
poration has  its  principal  place  of  business  may,  on  complaint  of  a 
creditor  of  the  corporation,  or  a  stockholder  or  member  thereof, 
appoint  a  receiver  to  take  charge  of  its  estate  and  effects,  and  to  col- 
lect the  debts  and  property  due  and  belonging  to  the  corporation,  and 
to  pay  the  outstanding  debts  thereof,  and  to  divide  the  money  and 
other  properties  that  shall  remain  over  among  the  stockholders  or 
members. 

Sec.  188.  Obligations  for  damages  on  appointment  of  receiver. — 
If  a  receiver  be  appointed  upon  an  ex  parte  application,  the  court, 
before  making  the  order,  may  require  from  the  plaintiff  or  person 
filing  the  application  for  such  appointment,  an  obligation  with  suffi- 
cient sureties,  to  be  approved  by  the  court,  in  an  amount  to  be  fixed 
by  the  court,  to  the  effect  that  the  applicant  will  pay  to  the  defendant 
in  the  application  all  damages  he  may  sustain  by  reason  of  the  ap- 
pointment of  such  receiver  and  the  entry  by  him  upon  his  duties,  in 
case  the  applicant  shall  have  procured  such  appointment  without 
sufficient  cause ;  and  the  court  may,  in  its  discretion,  at  any  time  after 
the  appointment,  require  an  additional  obligation  as  further  security 
for  such  damages.  The  damages,  if  any,  shall  be  ascertained  by  the 
court  and,  in  its  final  judgment  in  the  action,  shall  be  decreed  against 
the  plaintiff  and  the  sureties  on  the  obligation. 

Sec.  189.  Oath  and  obligation  of  receivers. — Before  entering 
upon  his  duties,  the  receiver  must  be  sworn  to  perform  them  faith- 
fully, and  with  one  or  more  sureties  approved  by  the  court  or  judge, 
execute  an  obligation  to  such  person  and  in  such  sum  as  the  court  or 
judge  may  direct,  to  the  effect  that  he  will  faithfully  discharge  the 
duties  of  receiver  in  the  action  and  obey  the  orders  of  the  court  therein. 

Sec.  190.  Funds  in  the  hands  of  receiver. — Funds  in  the  hands  of  a 
receiver  may  be  invested  upon  interest  by  order  of  the  court;  but 
no  such  order  shall  be  made  except  upon  the  written  consent  of  all 
the  parties  to  the  action. 


44  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

Sec.  191.  Termination  of  receivership. — Whenever  the  court  of  its 
own  motion,  or  on  that  of  either  party,  shall  determine,  after  due 
notice  and  hearing,  that  the  necessity  for  a  receiver  no  longer  exists, 
it  shall,  on  notice  and  hearing,  settle  the  accounts  of  the  receiver, 
direct  the  payment  of  the  funds  in  his  hands,  and  the  delivery  of  the 
property  by  him  held,  to  such  persons  as  shall  be  adjudged  entitled  to 
receive  them,  and  order  his  discharge  from  further  duties  as  receiver. 

Partition  of  real  estate. 

Sec.  192.  Partition  of  real  estate. — A  person  having  or  holding 
real  estate  with  others,  in  any  form  of  joint  tenancy,  or  tenancy  in 
common,  may  compel  partition  thereof  in  the  manner  hereinafter  pre- 
scribed. 

Sec  193.  Where  action  for  partition  must  he  brought. — An  action 
to  enforce  partition  shall  be  brought  in  the  circuit  wherein  the 
estate  sought  to  be  divided  is  situated.  If  the  estate  is  situated  in 
two  or  more  circuits,  the  action  for  partition  of  the  whole  may  be  in- 
stituted and  maintained  in  any  circuit  wherein  a  part  of  such  estate 
is  situated. 

Sec.  194.  The  complaint. — The  complaint  in  an  action  for  par- 
tition shall  set  forth  the  nature  and  extent  of  the  plaintiff's  title  and 
contain  an  adequate  discription  of  the  real  estate  of  which  partition 
is  demanded,  and  name  each  tenant  in  common,  coparcener,  or  other 
person  interested  therein  as  defendants. 

Sec.  195.  The  order  of  partition. — If,  upon  trial,  the  court  finds 
that  the  plaintiff  has  a  legal  right  to  any  part  of  such  estate,  it  shall 
order  partition  thereof  in  favor  of  the  plaintiff,  among  all  parties  in 
interest. 

Thereupon  the  parties  may,  if  they  are  able  to  agree,  make  parti- 
tion among  themselves,  by  proper  instruments  of  conveyance  and  the 
court  shall  confirm  the  partition  so  agreed  upon  bj^  all  the  parties 
and  enter  the  same  of  record,  and  the  amicable  partition  so  made 
shall  be  valid  and  binding  between  the  parties  thereto.  But  if  the 
parties  are  unable  to  agree  upon  a  partition,  the  court  shall  appoint 
three  judicious  and  disinterested  land  owners  of  the  circuit  in  which 
the  land  to  be  divided,  or  some  portion  of  the  same,  is  situated,  to  be 
commissioners  to  make  the  partition,  and  shall  order  a  writ  of  par- 
tition to  issue  to  the  commissioners  commanding  them  to  make  parti- 
tion of  the  estate  and  to  set  off  to  the  plaintiff  and  to  each  party  in 
interest  such .  part  and  proportion  of  the  estate  as  the  court  shall 
order. 

Sec.  19G.  Duty  of  commissioners  in  making  partition. — Before 
making  such  partition,  the  commissioners  shall  take  and  subscribe 
an  oath  before  the  judge  or  clerk,  or  any  district  judge,  that  they 
will  faithfully  perforin  their  duties  as  commissioners,  which  oaths 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  45 

shall  be  filed  in  court  with  the  other  proceedings  in  the  case.  In 
making  such  partition,  the  commissioners  shall  view  and  examine 
the  estate,  after  due  notice  to  the  parties  to  attend  at  such  view  and 
examination,  and  shall  hear  the  parties  as  to  their  preference  in  the 
portion  of  the  estate  to  be  set  apart  to  them  and  the  comparative  value 
thereof,  and  shall  set  apart  the  estate  to  the  several  parties  in  such 
lots  or  parcels  as  will  be  most  advantageous  and  equitable,  having 
due  regard  to  the  improvement,  situation,  and  quality  of  the  different 
parts  thereof. 

Sec  197.  When  partition  of  more  than  one  tract  is  demanded. — 
When  partition  of  more  than  one  tract  is  demanded  the  commis- 
sioners shall  set  off  to  each  plaintiff  or  party  in  interest,  his  proper 
proportion  in  each  of  the  several  tracts,  unless  the  several  tracts  are 
owned  by  the  same  proprietors  and  in  the  same  proportion  in  each 
tract,  in  which  case  the  whole  share  of  any  proprietor,  in  all  the 
several  tracts,  may  be  set  off  to  such  proprietor  according  to  the  best 
discretion  of  the  commissioners. 

Sec.  198.  Assignment  or  sale  of  the  estate. — When  it  is  made  to 
appear  to  the  commissioners  that  the  estate,  or  a  portion  thereof, 
cannot  be  divided  without  great  inconvenience  to  the  parties  inter- 
ested, the  court  may  order  it  assigned  to  one  of  the  parties,  provided 
he  pays  to  the  other  party  such  sum  of  money  as  the  commissioners 
judge  equitable.  But  if  no  one  of  the  parties  interested  will  take  such 
assignment  and  pay  such  sum,  the  court  shall  order  the  commis- 
sioners to  sell  such  estate  at  public  or  private  sale.  In  that  case  the 
commissioners  shall  sell  the  estate  agreeably  to  such  order;  but  the 
sale  shall  not  be  valid  to  pass  the  title  to  the  property  until  confirmed 
by  the  court,  unless  the  order  of  sale  itself  shall  otherwise  provide. 

Sec  199.  Report  of  commissione?'S. — The  commissioners  shall  make 
full  and  accurate  report  to  the  court  of  all  their  proceedings  as  to 
partition,  or  assignment  of  the  estate  to  one  of  the  parties,  or  sale  of 
the  same.  But  none  of  their  proceedings  shall  be  effectual  to  bind 
the  property  or  the  parties  until  the  court  shall  have  accepted  their 
report  and  rendered  judgment  therein. 

Sec  '200.  Action  of  the  court  upon  commissioner*'  report. — Upon 
the  filing  of  such  report  in  court,  the  court  shall,  upon  hearing, 
accept  the  same  and  render  judgment  in  accordance  therewith;  or 
for  cause  shown  it  may  recommit  the  report  to  the  commissioners 
for  further  report  of  facts ;  or  it  may  set  aside  the  report  and  appoint 
new  commissioners;  or  it  may  accept  the  report  in  part  and  reject 
it  in  part,  and  make  such  final  order  and  judgment  as  shall  effectuate 
a  fair  and  just  partition  of  the  estate  or  of  its  value,  if  sold  or 
assigned  as  above  provided  between  the  several  owners  thereof. 

Sec  201.  Distribution  of  proceeds  of  sale. — The  money  or  securi- 
ties arising  from  a  sale,  or  an  election  to  take  the  estate  in  accordance 
with  the  foregoing  provision  shall  be  distributed  and  paid,  by  orde? 
803a— 07— m 4 


46  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

of  the  court,  to  the  parties  entitled  thereto,  in  lieu  of  their  respective 
parts  and  proportions  of  the  estate,  according  to  their  just  rights 
therein. 

Sec.  202.  Accounting  for  rent  and  profits  in  action  for  partition. — 
In  an  action  for  partition  in  accordance  with  the  last  nine  preceding 
sections,  one  tenant  in  common,  or  joint  tenant,  or  coparcener,  may 
recover  from  another  his  just  share  of  rent  and  profits  received  by- 
such  other  tenant  in  common,  joint  tenant,  or  coparcener  from  the 
estate  according  to  the  justice  and  equity  of  the  case,  and  the  final 
judgment  shall  include  an  allowance  for  such  rents  and  profit  as  are 
found  to  be  justly  recoverable. 

Sec.  203.  Costs  and  expenses  to  be  equitably  taxed. — The  court 
shall  tax  and  apportion  between  the  parties  the  costs  and  expenses 
which  accrue  in  the  action,  having  regard  to  the  interests  of  the 
parties,  and  the  benefit  that  each  party  may  derive  from  a  partition 
and  according  to  equity.  An  execution  may  issue  therefor  as  in  other 
cases. 

Sec.  204.  Fees  of  commissioners. — The  commissioners  appointed  to 
make  partition  of  real  estate  shall  receive  such  compensation  for  the 
time  actually  and  necessarily  employed  in  the  performance  of  their 
duties  and  in  making  their  report  to  the  court,  as  the  parties  may 
agree  to  or  the  court  fix,  which  fee  shall  be  taxed  as  a  part  of  the  costs 
of  the  proceeding  and  apportioned  as  provided  in  the  last  preceding 
section. 

Sec.  205.  Final  judgment,  its  record  and  effect. — The  record  of  the 
final  judgment  in  such  action  shall  state  definitely  by  metes  and 
bounds  an  adequate  description,  the  particular  portion  of  the  estate 
that  is  assigned  to  each  party  to  the  action  if  partition  is  made;  if  the 
whole  estate  is  assigned  to  one  of  the  parties  upon  his  paying  to  the 
other  party  the  sum  ordered  by  the  court,  the  record  shall  state 
the  fact  of  such  payment  and  of  the  assignment  of  the  estate  to  such 
party  making  such  payment. 

If  the  estate  is  sold  and  the  sale  is  confirmed  by  the  court,  the  record 
shall  state  the  name  of  the  purchaser  or  purchasers  and  a  definite 
description  of  the  parcels  of  the  estate  sold  to  each  purchaser.  The 
expense  of  such  record  shall  be  taxed  as  a  part  of  the  costs  of  the 
action. 

If  actual  partition  of  the  land  is  made,  the  effect  of  the  judgment 
shall  be  to  vest  in  each  party  to  the  action  in  severalty  the  portion  of 
the  estate  assigned  to  him.  If  the  whole  estate  is  assigned  to  one  of 
the  parties  upon  his  payment  to  the  other  party  or  parties  of  the  sum 
ordered  by  the  court,  the  effect  of  the  judgment,  upon  such  payment 
being  made,  shall  be  to  vest  in  the  party  making  the  payment,  in  ac- 
cordance with  the  order  of  the  court,  the  fee  of  the  whole  estate  free 
of  any  interest  on  the  part  of  the  other  joint  tenants,  tenants  in  com- 
mon, or  coparceners.    If  the  estate  is  sold,  and  the  sale  confirmed  by 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  47 

the  court,  the  effect  of  the  record  shall  be,  upon  payment  for  the  same 
being  made,  to  vest  in  the  purchaser  or  purchasers  the  fee  of  the  estate 
free  from  claims  of  any  of  the  parties  to  the  action.  The  record  of 
the  judgment  shall  constitute  an  instrument  of  evidence  in  all  ques- 
tions as  to  the  title  to  the  lands  or  the  estate  which  may  be  the  subject 
of  the  judgment  in  all  courts,  and  shall  be  conclusive  as  to  the  rights 
of  all  parties  to  the  suit.  But  the  right  of  appeal  to  the  Supreme 
Court  shall  appertain  to  actions  for  partition  in  the  same  manner  and 
to  the  same  extent  as  to  other  actions. 

Sec.  206.  Power  of  guardian  in  partition  proceedings. — The  guar- 
dian, or  guardian  ad  litem,  of  a  minor,  or  person  of  unsound  mind, 
may,  on  behalf  of  his  ward,  and  with  the  approval  of  the  court,  do 
and  perform  any  act,  matter,  or  things  respecting  the  partition  of 
an  estate  which  such  minor  or  person  of  unsound  mind  could  do 
in  partition  proceedings  if  he  were  of  age  or  of  sound  mind. 

Sec  207.  Paramount  rights  and  amicable  partition  not  affected. — 
Nothing  herein  contained  shall  be  construed  so  as  to  injure,  preju- 
dice, defeat,  or  destroy  the  estate  right,  or  title  of  any  person  claim- 
ing a  tract  of  land,  or  any  part  thereof,  by  title  under  any  other 
person  or  by  title  paramount  to  the  title  of  the  joint  tenants,  tenants 
in  common,  or  coparceners  by  whom  partition  may  have  been  made. 
Nothing  herein  contained  shall  be  construed  as  restricting  or  pre- 
venting joint  tenants,  tenants  in  common,  or  coparceners  from  mak- 
ing an  amicable  partition  of  their  common  estate  by  agreement  and 
suitable  instrument  of  conveyance  without  recourse  to  an  action  for 
that  purpose. 

Usurpation  of  office  or  franchise. 

Sec  208.  Usurpation  of  an  office  or  franchise. — A  civil  action  may 
be  brought  in  the  name  of  the  Government  of  the  Canal  Zone: 

1.  Against  a  person  who  usurps,  intrudes  into,  or  unlawfully  holds 
or  exercises  a  public  civil  office  or  a  franchise  with  the  Canal  Zone, 
or  an  office  in  a  corporation  created  by  the  authority  of  the  Govern- 
ment of  the  Canal  Zone; 

2.  Against  a  public  civil  officer  who  does  or  suffers  an  act  which, 
by  the  provisions  of  law,  works  a  forfeiture  of  his  office; 

3.  Against  an  association  of  persons  who  act  as  a  corporation 
within  the  Canal  Zone,  without  being  legally  incorporated  or  with- 
out lawful  authority  so  to  act. 

Sec  209.  Like  actions  against  a  corporation. — A  like  action  may 
be  brought  against  a  corporation: 

1.  When  it  has  offended  against  a  provision  of  an  act  for  its  crea- 
tion or  renewal,  or  any  act  altering  or  amending  such  act; 

2.  When  it  has  forfeited  its  privileges  and  franchises  by  non-user; 

3.  When  it  has  committed  or  omitted  an  act  which  amounts  to  a 
surrender  of  its  corporate  rights,  privileges  and  franchises; 


48  CODE    OF    CIVIL    PROCEDUEE    OF    THE    CANAL    ZONE. 

4.  When  is  has  misused  a  franchise,  privilege,  or  right  conferred 
upon  it  by  law  or  when  it  has  exercised  a  franchise,  privilege,  or 
right  in  contravention  of  law. 

Sec.  210.  Action  to  be  prosecuted  !>>/  public  officers. — The  General 
Counsel  of  the  Isthmian  Canal  Commission  or  the  Prosecuting 
Attorney  of  the  Canal  Zone  may  commence  any  such  action;  and 
when,  upon  complaint  or  otherwise,  he  has  good  reason  to  believe 
that  any  case  specified  in  the  two  preceding  sections  can  be  established 
by  proof  he  must  commence  such  action. 

Sec.  211.  Stone. — The  General  Counsel  of  the  Isthmian  Canal  Com- 
mission or  the  Prosecuting  Attorney  of  the  Canal  Zone  may,  at  his  own 
instance,  bring  such  an  action,  or  he  may.  on  leave  of  the  court  in 
which  the  action  is  to  be  commenced,  or  a  judge  thereof  in  vacation, 
bring  the  action  upon  the  relation  of  and  at  the  request  of  another 
person;  but,  if  the  action  is  brought  at  the  request  of  and  upon  the 
relation  of  another  person,  the  officer  bringing  it  may  require  an 
indemnity  for  expenses  and  costs  of  the  action  to  be  given  to  him  by 
the  party  at  whose  request  and  upon  whose  relation  the  same  is 
brought  before  commencing  it. 

Sec.  212.  .1//  individual  mitt/  commence  such  action. — A  person 
claiming  to  be  entitled  to  a  public  office,  unlawfully  held  and  exer- 
cised by  another,  may  bring  an  action  therefor. 

Sec.  213.  What  the  complaint  must  set  forth  in  such  action,'  judg- 
ment therein. — When  the  action  is  against  a  person  for  usurping  an 
office,  the  complaint  shall  set  forth  the  name  of  the  person  who 
claims  to  be  entitled  thereto,  with  an  averment  of  his  right  to  the 
same ;  and  that  the  defendant  is  unlawfully  in  possession  of  the 
same;  and  judgment  may  be  rendered  upon  the  right  of  the  defend- 
ant, and  also  upon  the  right  of  the  person  so  averred  to  be  entitled, 
or  only  upon  the  right  of  the  defendant,  as  justice  requires. 

Sec.  214.  Who  may  be  made  defendants. — All  persons  who  claim 
to  be  entitled  to  the  same  office  or  franchise  may  be  made  defendants 
in  the  same  action,  to  try  their  respective  rights  to  such  office  or 
franchise. 

Sec.  215.  Where  such  actions  may  be  brought. — An  action  under 
the  last  preceding  seven  sections  can  be  brought  only  in  the  Supreme 
Court  or  in  the  Circuit  Court  in  which  the  defendant,  or  one  of  the 
defendants,  resides,  or,  when  the  defendant  is  a  corporation,  in  the 
circuit  in  which  it  is  situated  or  has  a  place  of  business;  but  when 
the  General  Counsel  commences  the  action,  it  may  be  brought  in  a 
Circuit  Court  or  in  the  Supreme  Court. 

Sec.  216.  Application  for  leave  to  commence  action  and  notice  to 
defendant. — Upon  application  for  leave  to  commence  such  action, 
in  accordance  with  section  two  hundred  eleven,  the  court  or  judge 
may,  in  its  or  his  discretion,  direct  notice  thereof  to  be  given  to  the 
defendant  orevious  to  granting  such  leave,  and  may  hear  the  defend- 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONK.  49 

ant  in  opposition  thereto;  and  if  leave  be  granted,  entry  thereof  shall 
be  made  on  the  docket  or  the  fact  shall  be  indorsed  by  the  judge  on 
the  complaint,  which  shall  then  be  filed. 

Sec.  217.  Expediting  proceedings. — An  order  may  be  made  by  the 
court,  or  by  the  judge,  shortening  the  time  for  filing  pleadings  and 
for  all  other  proceedings,  in  such  cases  as  fixed  by  general  rules,  so 
as  to  secure  the  most  expeditious  determination  of  the  matters  in- 
volved in  the  litigation  consistent  with  the  rights  of  the  parties. 
Such  action  shall  have  precedence  of  any  civil  business  pending  in 
the  court. 

Sec.  218.  Judgment  where  office,  franchise,  etc.,  found  to  have 
been  usurped. — When  the  defendant  is  found  guilty  of  usurping, 
intruding  into,  or  unlawfully  holding  or  exercising  an  office,  fran- 
chise, or  privilege,  judgment  shall  be  rendered  that  such  defendant 
be  ousted  and  altogether  excluded  therefrom,  and  that  the  relator 
or  plaintiff,  as  the  case  may  be,  recover  his  costs.  Such  further  judg- 
ment may  be  rendered  as  is  provided  in  section  two  hundred  thirteen. 

Sec.  219.  Judgment  where  director  of  a  corporation  found  to  have 
teen  illegally  elected. — -When  the  action  is  brought  against  a  director 
of  a  corporation  and  the  court  finds  that  at  his  election  either  illegal 
votes  were  received  or  legal  votes  rejected,  or  both,  sufficient  to  change 
the  result,  judgment  may  be  rendered  that  the  defendant  be  ousted, 
and  of  induction  in  favor  of  the  person  who  was  entitled  to  have  been 
declared  elected  at  such  election.  Or,  in  such  case,  the  court  may,  in 
its  discretion  order  a  new  election  to  be  held  at  a  time  and  place  and 
by  judges  of  election  appointed  by  the  court;  notice  of  such  election 
and  nomination  of  the  judges  shall  be  given  for  the  time  and  in  the 
manner  provided  by  law  for  notice  of  elections  of  directors  of  such 
corporations ;  the  order  of  the  court  shall  become  obligatory  upon  the 
corporation  and  its  officers  when  a  duly  certified  copy  thereof  is  served 
upon  its  secretary  personally  or  left  at  its  principal  office;  and  the 
court  may  enforce  its  order  by  attachment  or  in  any  other  manner  it 
deems  necessary. 

Sec.  220.  Rights  of  person  adjudged  to  be  entitled  to  office. — If 
judgment  be  rendered  in  favor  of  the  person  averred  to  be  entitled 
to  the  office  he  may,  after  taking  the  oath  of  office  and  executing  any 
official  bond  required  by  law,  take  upon  himself  the  execution  of  the 
office,  and  he  shall  immediately  thereafter  demand  of  the  defendant 
all  the  books  and  papers  in  his  custody  or  within  his  power  appertain- 
ing to  the  office  from  which  he  has  been  ousted. 

Sec.  221.  How  judgment  of  court  enforced. — If  such  defendant  re- 
fuse or  neglect  to  deliver  over  any  such  book  or  paper  pursuant  to 
demand,  he  shall  be  deemed  guilty  of  a  contempt  of  court  and  shall 
be  fined  in  any  sum  not  exceeding  twenty-five  hundred  dollars  and 
imprisoned  until  he  complies  with  the  order  of  the  court,  or  is  other- 
wise discharged  by  due  course  of  law. 


50  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  222.  Action  for  damages  against  person,  ousted. — Such  person 
ma}',  at  any  time  within  one  year  after  date  of  such  judgment,  bring 
an  action  against  the  party  ousted  and  recover  the  damages  sustained 
hy  reason  of  his  usurpation. 

Sec.  22-3.  Judgment  when  corporation  has  forfeited  its  rights. — 
When,  in  any  such  action,  it  is  found  and  adjudged  that  a  corpora- 
tion has,  by  an  act  done  or  omitted,  surrendered,  or  forfeited  its  cor- 
porate rights,  privileges,  and  franchise,  or  has  not  used  the  same  dur- 
ing the  term  of  five  years,  judgment  shall  be  entered  that  it  be  ousted 
and  excluded  therefrom  and  that  it  be  dissolved ;  but  when  it  is  found 
and  adjudged  that  a  corporation  has  offended  in  any  matter  or  man- 
ner which  does  not  by  law  work  as  a  surrender  or  forfeiture,  or  has 
misused  a  franchise  or  exercised  a  power  not  conferred  by  law,  but 
not  of  such  a  character  as  to  work  a  surrender  or  forfeiture  of  its 
franchise,  judgment  shall  be  rendered  that  it  be  ousted  from  the  con- 
tinuance of  such  offense  or  the  exercise  of  such  power. 

Sec.  224.  Appointment  of  receiver  when  corporation  dissolved. — 
The  court  rendering  a  judgment  dissolving  a  corporation  shall  ap- 
point a  receiver  of  all  its  assets,  agreeably  to  section  one  hundred 
eighty-five,  who  shall  proceed  to  administer  the  same  in  accordance 
with  the  provisions  of  sections  one  hundred  eighty-six  to  one  hundred 
ninety,  inclusive. 

Sec.  225.  How  receiver  placed  in  possession. — An  officer  of  such 
corporation  who  refuses  or  neglects,  upon  demand,  to  deliver  over  to 
the  receiver  all  money,  property,  books,  deeds,  notes,  bills,  obligations, 
and  papers  of  every  description  and  within  its  power  or  control,  be- 
longing to  the  corporation,  or  in  any  wise  necessary  for  the  settlement 
of  its  affairs,  or  the  discharge  of  its  debts  and  liabilities,  shall  be 
deemed  guilty  of  a  contempt  of  court,  and  shall  be  fined  not  exceed- 
ing twenty-five  hundred  dollars,  and  imprisoned  until  he  complies 
with  the  order  of  the  court,  or  is  otherwise  discharged  by  due  course 
of  law ;  and  he  shall  be  liable  to  the  receiver  for  the  value  of  all  money 
or  other  things  so  refused  or  neglected  to  be  surrendered,  together 
with  all  damages  that  may  have  been  sustained  by  the  stockholders 
and  creditors  of  the  corporation,  or  any  of  them,  in  consequence  of 
such  neglect  or  refusal. 

Sec.  22G.  Judgment  for  costs. — If  judgment  be  rendered  in  such 
action  against  a  corporation  or  against  a  person  claiming  to  be  a 
corporation,  the  court  may  render  judgment  for  the  costs  against  the 
directors  or  other  officers  of  the  corporation,  or  against  the  person 
claiming  to  be  the  corporation.  If  judgment  be  rendered  for  the 
defendant  he  shall  recover  his  costs  from  the  plaintiff,  if  the  plaintiff 
be  not  the  Government. 

Sec.  227.  Limitations. — Nothing  herein  contained  shall  authorize 
an  action  against  a  corporation  for  forfeiture  of  charter,  unless  the 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  51 

same  be  commenced  within  five  years  after  the  act  complained  of  was 
done  or  committed ;  nor  shall  an  action  be  brought  against  an  officer 
to  be  ousted  from  his  office  unless  within  one  year  after  the  cause  of 
such  ouster,  or  the  right  to  hold  the  office,  arose. 

Certiorari  proceedings. 

Sec.  228.  Certiorari  proceedings. — When  the  ground  of  the  com- 
plaint in  an  action  in  a  Circuit  Court  is  that  an  inferior  tribunal, 
board,  or  officer  exercising  judicial  functions,  has  exceeded  the  juris- 
diction of  such  tribunal,  board,  or  officer,  and  there  is  no  appeal,  nor 
any  plain,  speedy,  and  adequate  remedy,  and  the  court,  on  trial,  finds 
the  allegations  of  the  complaint  to  be  true,  it  shall  render  a  judgment 
ordering  such  inferior  tribunal,  board,  or  officer,  or  other  person  hav- 
ing the  custody  of  the  record  or  proceedings,  at  a  specified  time  and 
place,  to  certify  to  the  court  a  transcript  of  the  record  and  the  pro- 
ceedings (describing  or  referring  to  them  with  convenient  certainty) 
that  the  same  may  be  reviewed  by  the  court ;  and  requiring  the  party, 
in  the  meantime,  to  desist  from  further  proceedings  in  the  matter 
to  be  reviewed,  if,  in  the  judgment  of  the  court,  a  stay  ought  to  be 
granted. 

Sec.  229.  Service  of  order. — A  certified  copy  of  the  judgment  and 
order  of  the  court,  as  provided  in  the  preceding  section,  shall  be 
served  upon  such  inferior  tribunal,  board,  or  officer  in  such  manner 
as  the  court  may  direct. 

Sec  230.  Enforcement  of  order. — If  such  order  is  not  obeyed,  the 
court  may  enforce  it  by  attachment  and  by  fine  and  imprisonment  as 
for  contempt. 

Sec.  231.  Final  proceedings  in  certiorari. — AVhen  the  proceedings 
complained  of  have  been  fully  certified,  the  court  shall  hear  the 
parties  and  determine  whether  the  inferior  tribunal,  board,  or  officer 
has  regular^  pursued  its  authority ;  and  if  it  finds  that  such  inferior 
tribunal,  board,  or  officer  has  not  regularly  pursued  its  authority,  it 
shall  thereupon  give  final  judgment,  either  affirming,  or  annulling, 
or  modifying  the  proceedings  below,  as  the  law  requires. 

Sec.  232.  Certifying  judgment  to  inferior  tribitnal. — A  cop}r  of  the 
final  judgment,  signed  by  the  clerk,  shall  be  transmitted  to  the 
inferior  tribunal,  board,  or  officer  having  the  custod}r  of  the  record 
or  proceedings  certified  up. 

Mandate. 

Sec.  233.  Mandate. — When  the  complaint  in  an  action  in  a  Circuit 
Court  alleges  that  any  inferior  tribunal,  corporation,  board,  or  person 
unlawfully  neglects  the  performance  of  an  act  which  the  law  speci- 
ally enjoins  as  a  duty  resulting  from  an  office,  trust,  or  station,  or 


52  CODE    OF    CIVIL   PEOCEDURE    OP    THE    CANAL   ZONE. 

unlawfully  excludes  the  plaintiff  from  the  use  and  enjoyment  of  a 
right  or  office  to  which  he  is  entitled  and  from  which  he  is  unlaw- 
fully precluded  by  such  inferior  tribunal,  corporation,  board,  or 
person,  and  the  court,  on  trial,  finds  the  allegations  of  the  complaint 
to  be  true,  it  may,  if  there  is  no  other  plain,  speedy,  and  adequate 
remedy  in  the  courts  of  law,  render  a  judgment  granting  a  per- 
emptory order  against  the  defendant,  commanding  him,  immediately 
after  the  receipt  of  such  order,  or  at  some  other  specified  time,  to  do 
the  act  required  to  be  done  to  protect  the  rights  of  the  plaintiff. 

Sec.  234.  Damages  in  such  action. — If  judgment  be  given  for  the 
plaintiff,  he  may  recover  in  the  same  action  the  damages  which  he 
has  sustained,  as  determined  by  the  court,  by  reason  of  the  wrongful 
acts  of  the  defendant,  together  with  costs. 

Sec  235.  Service  of  the  order. — A  certified  copy  of  the  judgment 
and  order  of  mandate  shall  be  served  upon  the  defendant  in  such 
manner  as  the  court  may  direct. 

Sec  23G.  Enforcement  of  order  of  mandate. — -When  a  peremptory 
mandate  has  been  issued  to  and  served  upon  any  inferior  tribunal, 
corporation,  board,  or  person,  as  provided  in  the  preceding  section, 
if  it  be  made  to  appear  to  the  court  that  any  member  of  such  tribunal, 
corporation,  or  board,  or  such  person  upon  whom  the  order  has  been 
personally  served,  has,  without  just  excuse,  refused  or  neglected  to 
obey  the  same,  the  court  may,  upon  motion  and  notice  to  the  defend- 
ant, and  hearing,  impose  a  fine  not  exceeding  five  hundred  dollars 
upon  the  person  offending. 

In  case  of  persistence  in  a  refusal  of  obedience,  the  court  may 
order  the  party  to  be  imprisoned  until  the  order  is  obeyed,  and  may 
make  any  orders  necessary  and  proper  for  the  complete  enforcement 
of  the  mandate. 

Prohibition. 

Sec.  237.  Prohibition. — When  the  complaint  in  any  action  pending 
in  any  Circuit  Court  alleges  that  the  proceedings  of  any  inferior 
tribunal,  corporation,  board,  or  person,  whether  exercising  functions 
judicial  or  ministerial,  were  without  or  in  excess  of  the  jurisdiction  of 
such  tribunal,  corporation,  board,  or  person,  and  the  court,  on  trial, 
shall  find  that  the  allegations  of  the  complaint  are  true,  and  that 
the  plaintiff  has  no  other  plain,  speedy,  and  adequate  remedy  in  the 
ordinary  course  of  law,  it  shall  render  a  judgment  in  favor  of  the 
plaintiff,  including  an  order  commanding  the  defendant  absolutely 
to  desist  or  refrain  from  further  proceedings  in  the  action  or  matter 
specified  therein. 

Sec  238.  Service  of  judgment  and  order. — A  certified  copy  of  the 
judgment  and  order  of  prohibition  shall  be  served  upon  the  defend- 
ant in  such  manner  as  the  court  shall  direct. 


CODE    OF    CIVIL   PKOCEDURE    OF    THE    CANAL,   ZONE.  53 

Sec.  239.  Enforcement  order  of  prohibition. — An  order  of  pro- 
hibition may  be  enforced  in  the  same  manner  as  is  provided  for  the 
enforcement  of  an  order  of  mandate. 

Sec  240.  Preliminary  injunctions  in  certiorari,  mandate,  and 
prohibition  proceedings. — A  preliminary  injunction  in  certiorari, 
mandate,  and  prohibition  proceedings  may  be  granted  by  the  judge 
if,  in  his  judgment,  such  injunction  is  necessary  for  the  preservation 
of  the  rights  of  the  parties,  pending  litigation. 

Sec.  241.  Expediting  such  proceedings. — The  court  may  in  its 
discretion,  make  such  orders  as  it  deems  necessary  for  expediting 
proceedings  in  actions  praying  for  certiorari,  mandate,  or  prohibi- 
tion, and  the  judge  may  make  such  orders  in  vacation,  as  well  as  in 
term  time. 

Contempt. 

Sec  242.  What  contempt  of  court  may  be  punished  summarily. — 
A  Circuit  Court  may  punish  summarily,  by  fine  not  exceeding  one 
hundred  dollars,  or  by  imprisonment  not  exceeding  ten  days,  or  both, 
a  person  guiltj^  of  misbehavior  in  the  presence  of  or  so  near  the 
court  or  judge  as  to  obstruct  the  administration  of  justice,  including 
the  refusal  of  a  person  present  in  court  to  be  sworn  as  a  witness  or 
to  answer  as  a  witness  when  lawfully  required. 

Sec  243.  What  other  acts  are  contempts  of  court. — A  person  guilty 
of  any  of  the  following  acts  may  be  punished  as  for  contempt : 

1.  Disobedience  of  or  resistance  to  a  lawful  writ,  process,  order, 
judgment,  or  command  of  a  court,  or  injunction  granted  by  a  court 
or  judge; 

2.  Misbehavior  of  an  officer  of  the  court  in  the  performance  of 
his  official  duties,  or  in  his  official  transactions; 

3.  A  failure  to  obey  a  subpoena  duly  served; 

4.  The  rescue,  or  attempted  rescue,  of  a  person  or  property  in  the 
custody  of  an  officer  by  virtue  of  an  order  or  process  of  the  court 
held  by  him. 

Sec  244.  When  accused  entitled  to  be  heard. — In  cases  under  the 
last  section,  a  charge  in  writing  shall  be  filed  with  the  clerk,  an  entry 
thereof  made  upon  the  docket,  and  an  opportunity  given  to  the 
accused  to  be  heard,  by  himself  or  counsel ;  but  this  section  shall  not 
be  so  construed  as  to  prevent  the  court  from  issuing  process  to 
bring  the  accused  party  into  court,  or  from  holding  him  in  custody 
pending  such  proceedings. 

Sec  245.  Bight  of  accused  to  bail. — In  such  proceedings  if  the  hear- 
ing is  not  ordered  to  be  held  forthwith,  the  court  may  fix  the  amount 
of  an  obligation  to  be  given  by  the  accused,  with  surety  to  the  satis- 
faction of  the  court,  for  the  appearance  of  the  accused  to  answer  the 
charge;  and  upon  the  approval  of  such  obligation  the  accused  shall 
be  released  from  custody. 


54  CODE    OF    CIVIL  PROCEDURE    OF    THE    CANAL   ZONE. 

Sec.  246.  Trial  of  the  charge. — Upon  the  day  fixed  for  the  trial 
the  court  shall  proceed  to  investigate  the  charge  and  shall  hear  any 
answer  or  testimony  which  the  accused  may  make  or  offer. 

Sec.  247.  Punishment  if  found  guilty. — The  court  shall  then  deter- 
mine whether  the  accused  is  guilty  of  the  contempt  charged ;  and,  if 
it  be  adjudged  that  he  is  guilty,  he  may  be  fined  not  exceeding  five 
hundred  dollars,  or  imprisoned  not  more  than  six  months,  or  both. 
If  the  contempt  consists  in  the  violation  of  an  injunction,  the  person 
guilty  of  such  contempt  may  also  be  ordered  to  make  complete  resti- 
tution to  the  party  injured  by  such  violation. 

Sec.  248.  Imprisonment  until  order  obeyed. — When  the  contempt 
consists  of  the  omission  to  do  an  act,  which  is  yet  in  the  power  of  the 
accused  to  perforin,  he  may  be  imprisoned  until  he  performs  it. 

Sec.  249.  Proceedings  when  party  released  on  bail  fails  to  appear. — 
If  the  party  released  on  bail  fail  to  appear  upon  the  day  named,  the 
court  may  issue  another  order  of  arrest,  or  may  order  the  obligation 
for  his  appearance  to  be  prosecuted,  or  both ;  and,  if  the  obligation  be 
prosecuted,  the  measure  of  damages  shall  be  the  extent  of  the  loss 
or  injury  sustained  by  the  aggrieved  party  by  reason  of  the  miscon- 
duct for  which  the  contempt  was  prosecuted  and  the  costs  of  the 
proceedings,  and  such  recovery  shall  be  for  the  benefit  of  the  party 
injured. 

Sec.  250.  Right  of  court  who  committed  prisoner  to  release  him. — 
When  a  person  has  been  imprisoned  for  contempt,  the  court  or  judge 
who  made  the  order  may  discharge  him  from  imprisonment,  when  it 
shall  be  made  to  appear  to  the  court  or  judge  that  the  public  interests 
will  not  suffer  thereby. 

Sec.  251.  Final  judgment. — The  judgment  and  orders  of  a  Circuit 
Court,  made  in  cases  of  contempt,  may  be  reviewed  by  the  Supreme 
Court;  but  execution  of  the  said  final  judgment  and  orders  shall  not 
be  suspended  until  there  is  filed  by  the  person  in  contempt,  in  the 
court  rendering  the  judgment  or  making  the  order,  an  obligation  with 
sureties  to  the  acceptance  of  the  judge,  in  an  amount  to  be  by  him 
fixed,  conditioned  that  he  will  prosecute  an  appeal  with  all  due  dili- 
gence and  that  if  the  judgment  be  against  him  he  will  abide  and 
perform  the  order  or  judgment.  But  such  review  shall  be  had  only 
after  final  judgment  in  the  action  in  the  Circuit  Court,  and  when 
the  cause  has  regularly  passed  to  the  Supreme  Court,  as  in  this  Code 
provided. 

The  Supreme  Court  shall  hear  said  cause  and  dispose  of  the  same 
at  the  first  term  of  the  Court  at  which  said  appeal  could  be  regularly 
heard. 

Foreclosure  of  mortgage. 

Sec.  252.  Where  action  for  foreclosure  of  real-estate  mortgage  must 
be  instituted. — An  action  for  the  foreclosure  of  a  mortgage  or  other 


CODE    OF    CTVTL    PROCEDURE    OF    THE    CANAL    ZONE.  55 

incumbrance  upon  real  estate,  or  an  interest  therein,  must  be  brought 
in  the  circuit  in  which  the  land  or  some  part  thereof  lies. 

Sec  253.  The  complaint  in  an  action  for  foreclosure  of  a  real-estate 
mortgage. — In  an  action  for  foreclosure  of  a  real-estate  mortgage,  or 
other  incumbrance  upon  real  estate  the  complaint  shall  set  forth  the 
date  and  due  execution  of  the  mortgage,  its  assignments,  if  any,  the 
names  and  residences  of  the  mortgagor  and  mortgagee,  a  description 
of  the  mortgaged  premises,  a  statement  of  the  date  of  the  note  or 
other  obligation  secured  by  the  mortgage,  and  the  amount  claimed  to 
be  unpaid  thereon,  and  the  names  and  residences  of  all  persons  hav- 
ing or  claiming  an  interest  in  the  premises  subordinate  in  right  to 
that  of  the  holder  of  the  mortgage,  all  of  whom  shall  be  made  defend- 
ants in  the  action. 

Sec.  254.  Trial  and  judgment  in  foreclosure  suit. — If  upon  trial  in 
such  action  the  court  shall  find  the  facts  set  forth  in  the  complaint  to 
be  true,  it  shall  ascertain  the  amount  due  to  the  plaintiff  upon  the 
mortgage  debt  or  obligation,  including  interest  and  costs,  and  shall 
render  judgment  for  the  sum  so  found  due,  and  order  that  the  same 
be  paid  into  court  on  or  before  the  first  day  of  the  next  term  of  the 
court  immediately  succeeding  the  one  at  which  such  order  was  made, 
and  that  in  default  of  such  payment  the  land  shall  be  sold  to  realize 
the  mortgage  debt  and  costs. 

Sec  255.  Sale  of  the  mortgaged  property. — When  the  defendant, 
after  being  directed  to  do  so,  as  provided  in  the  last  preceding  section, 
fails  to  pay  the  principal,  interest,  and  costs  at  the  time  directed  in 
the  order,  the  court  shall  order  the  property  to  be  sold  in  the  manner 
and  under  the  regulations  that  govern  sales  of  real  estate  under  exe- 
cution; but  such  sale  shall  not  affect  the  rights  of  persons  holding 
prior  incumbrances  upon  the  same  estate  or  a  part  thereof.  The  sale, 
when  confirmed  by  decree  of  the  court,  shall  operate  to  divest  the 
rights  of  all  the  parties  to  the  action  and  to  vest  their  rights  in  the 
purchaser.  Should  the  court  decline  to  confirm  the  sale,  for  good 
cause  shown,  and  should  set  it  aside,  it  shall  order  a  resale  in  accord- 
ance with  law. 

Sec  256.  Disposition  of  proceeds. — The  money  arising  from  the 
sale  of  mortgaged  property,  under  the  regulations  hereinbefore  pre- 
scribed, shall,  after  deduction  of  costs  of  sale,  be  paid  to  the  person 
foreclosing  the  mortgage,  and  when  there  shall  be  an}'  surplus,  after 
paying  off  such  mortgage  or  other  incumbrance,  the  same  shall  be 
paid  to  junior  incumbrancers  in  the  order  of  the  priority,  to  be 
ascertained  by  the  court,  or  if  there  be  no  such  incumbrances  or  there 
be  a  surplus  after  payment  of  such  incumbrances,  then  to  the  mort- 
gagor or  his  agent,  or  to  the  person  entitled  to  it. 

Sec  257.  Disposition  of  proceeds  in  case  the  debt  is  not  all  due. — 
If  the  debt  for  which  the  mortgage  or  incumbrance  was  held  is  not 


56  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

all  due,  so  soon  as  sufficient  of  the  property  has  been  sold  to  pay  the 
amount  due,  with  costs,  the  sale  must  cease;  and  afterwards,  as  often 
as  more  becomes  due  for  principal  or  interest,  the  court  may,  on 
motion,  order  more  to  be  sold.  But  if  the  property  can  not  be  sold 
in  portions  without  injury  to  the  parties,  the  whole  shall  be  ordered 
to  be  sold  iu  the  first  instance  and  the  entire  debt  and  costs  paid, 
a  rebate  of  interest  being  made  where  such  rebate  is  proper. 

Sec.  258.  Judgment  for  balance  after  sale  of  property. — Upon  the 
sale  of  an}-  real  property,  under  a  decree  for  a  sale  to  satisfy  a  mort- 
gage or  other  incumbrance  thereon,  if  there  be  a  balance  due  to  the 
complainant  after  applying  the  proceeds  of  the  sale,  the  court,  upon 
motion,  shall  give  a  decree  against  the  defendant  for  any  such  bal- 
ance for  which,  by  the  record  of  the  case,  he  may  be  personally  liable 
to  the  plaintiff,  upon  which  execution  may  issue  immediately  if  the 
balance  is  all  due  at  the  time  of  the  rendition  of  the  decree;  otherwise 
the  plaintiff  shall  be  entitled  to  execution  at  such  time  as  the  balance 
remaining  would  have  become  due  by  the  terms  of  the  original  con- 
tract, which  time  shall  be  stated  in  the  decree. 

Sec.  259.  Final  record. — The  final  record  in  the  action  shall  set 
forth,  in  brief,  the  petition  and  other  pleadings,  judgment,  orders, 
the  proceeding  under  the  order  of  sale,  and  the  decree  confirming  the 
same,  and  the  name  of  the  purchaser,  with  a  description  of  the  estate 
by  him  purchased. 

Manual  delivery  of  personal  property. 

Section  260.  Delivery  of  litigated  personal  property  to  plaintiff. — 
Whenever  the  complaint  in  an  action  shall  pray  for  the  recovery  of 
the  possession  of  personal  property,  the  plaintiff  may,  at  the  time  of 
instituting  the  action,  or  at  any  time  before  answer,  file  a  notice 
claiming  the  delivery  of  such  property  to  him,  in  the  manner  herein- 
after provided. 

Sec.  261.  Affidavit  and  obligation  to  be  filed  by  plaintiff. — Where 
a  delivery  is  claimed  an  affidavit  must  be  made  by  the  plaintiff,  or  by 
some  one  in  his  behalf,  showing : 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed  (par- 
ticularly describing  it)  or  is  entitled  to  the  possession  thereof; 

2.  That  the  property  is  wrongfully  detained  by  the  defendant; 

3.  The  alleged  cause  of  detention  thereof  according  to  his  best 
knowledge,  information,  and  belief; 

4.  That  it  has  not  been  taken  for  a  tax  assessment  or  fine  pursuant 
to  law,  or  seized  under  an  execution,  or  an  attachment  against  the 
property  of  the  plaintiff,  or.  if  so  seized,  that  it  is  by  law  exempt 
from  such  seizure; 

5.  The  actual  value  of  the  property. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  57 

The  plaintiff  shall  also  at  the  same  time  file  with  the  clerk  a  written 
obligation  of  the  plaintiff,  executed  by  two  or  more  sureties  approved 
by  the  court,  to  the  effect  that  they  are  bound  to  the  defendant  in 
double  the  value  of  the  propert}',  as  stated  in  the  affidavit  for  the 
prosecution  of  the  action,  for  the  return  of  the  property  to  the  defend- 
ant, if  the  return  thereof  be  adjudged,  and  for  the  payment  to  him  of 
such  sum  as  may  in  the  cause  be  recovered  against  the  plaintiff.  The 
affidavit  and  obligation  shall  be  filed  with  the  clerk  of  the  court  in 
which  the  action  is  pending. 

Sec.  262.  Warrant  of  seizure. — Upon  the  filing  of  such  affidavit 
and  obligation  it  shall  be  the  duty  of  the  clerk,  at  the  request  of  the 
plaintiff  or  his  attorney,  to  issue,  under  the  seal  of  the  court,  a  war- 
rant requiring  the  officer  of  the  court  forthwith  to  take  into  his  cus- 
tody the  personal  property  alleged  to  be  wrongfully  detained. 

Sec  263.  Service  of  warrant. — Upon  receiving  the  warrant  named 
in  the  last  section  the  officer  must  forthwith  take  the  property  de- 
scribed in  the  warrant,  if  it  be  in  the  possession  of  the  defendant  or 
his  agent,  and  retain  it  in  his  custody.  If  the  property,  or  any  part 
thereof,  be  concealed  in  a  building  or  inclosure,  the  officer  must  pub- 
licly demand  its  delivery;  if  it  be  not  delivered,  he  must  cause  the 
building  or  inclosure  to  be  broken  open  and  take  the  property  into 
his  possession.  When  the  officer  has  taken  property  as  herein  pro- 
vided, he  must  keep  it  in  a  secure  place  and  ultimately  deliver  it  to 
the  party  entitled  thereto,  upon  receiving  his  fees  for  taking  and  his 
necessary  expenses  for  keeping  the  same.  He  must,  without  delay, 
serve  on  the  defendant  a  copy  of  the  notice,  undertaking,  and  war- 
rant, in  the  manner  provided  by  law  for  service  of  process. 

Sec  264.  Proceedings  when  objection  is  made  to  the  sufficiency  of 
the  obligation. — The  defendant  may,  within  two  days  after  the  serv- 
ice of  a  copy  of  the  affidavit  and  undertaking  and  warrant,  give  notice 
to  the  clerk  that  he  excepts  to  the  sufficiency  of  the  obligation  or  of 
the  sureties.  If  he  fails  to  do  so,  he  is  deemed  to  have  waived  all 
objections  to  them.  When  the  defendant  excepts,  the  clerk,  on  notice 
to  both  parties,  and  on  hearing,  shall  investigate  the  sufficiency  of 
the  sureties  as  to  their  financial  responsibility.  If  the  clerk  finds  the 
obligation  to  be  insufficient  in  amount,  he  shall  require  a  new  obliga- 
tion with  sufficient  sureties  forthwith.  In  either  case,  if  the  plaintiff 
does  not  forthwith  furnish  a  sufficient  obligation  with  sufficient  sure- 
ties, the  clerk  shall  make  an  order  for  the  return  of  the  property  to 
the  defendant,  and  it  shall  be  returned.  If  the  defendant  except 
to  the  obligation  or  to  the  sureties,  he  can  not  reclaim  the  property 
as  provided  in  the  next  section. 

Sec.  265.  Delivery  of  property  to  the  defendant. — At  airy  time 
before  the  delivery  of  the  property  to  the  plaintiff,  as  in  this  section 


58  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

provided,  the  defendant  may,  if  he  do  not  except  to  the  obligation 
or  sureties  of  the  plaintiff,  require  the  return  thereof,  upon  delivering 
to  the  clerk  a  written  obligation  to  the  plaintiff  executed  by  him, 
with  two  or  more  sufficient  sureties,  to  the  effect  that  they  are  bound 
in  double  the  value  of  the  property  as  stated  in  the  affidavit  of  the 
plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if  such  delivery 
be  adjudged,  and  for  the  payment  of  such  sum  to  him  as  may  be 
recovered  against  the  defendant.  If  a  return  of  the  property  be  not 
so  required  within  five  days  after  the  taking  and  service  of  notice  to 
the  defendant,  it  must  be  delivered  to  the  plaintiff,  as' herein  pro- 
vided. 

Sec.  266.  Defendant's  obligation  and  sureties. — The  defendant's 
sureties,  upon  notice  to  the  plaintiff,  not  less  than  two  nor  more  than 
five  days,  must  justify  before  the  clerk,  and  upon  such  justification 
the  officer  must  deliver  the  property  to  the  defendant.  If  the  defend- 
ant's sureties,  or  others  in  their  place,  fail  to  justify  at  the  time  and 
place  appointed,  the  officer  must  deliver  the  property  to  the  plaintiff. 

Sec.  267.  Responsibility  of  officer  and,  clerk. — The  officer  will  be 
responsible  for  the  property  until  the  same  is  delivered  to  the  plain- 
tiff or  defendant,  as  herein  provided.  The  clerk  will  be  responsible 
for  the  sufficiency  of  the  sureties  at  the  time  he  shall  approve  them, 
but  not  for  their  sufficiency  at  a  subsequent  date  should  their  finan- 
cial standing  be  thereafter  changed. 

Sec.  268.  //  property  claimed  by  third  person. — If  the  property 
taken  be  claimed  by  any  other  person  than  the  defendant  or  his  agent, 
and  such  person  make  an  affidavit  of  his  title  thereto  or  right  to  the 
possession  thereof,  stating  the  grounds  of  such  right  or  title,  and 
serve  the  same  upon  the  officer  while  he  has  possession  of  the  prop- 
erty, the  officer  is  not  bound  to  keep  the  property,  or  deliver  it  to 
the  plaintiff,  unless  the  plaintiff  on  demand  of  him  or  his  agent, 
indemnify  the  officer  against  such  claim  by  an  obligation  with  two 
sufficient  sureties;  and  no  claim  to  such  property  or  damage  for  its 
seizure,  by  any  other  person  than  the  defendant  or  his  agent,  shall  be 
valid  against  the  officer  unless  so  made.  But  nothing  herein  con- 
tained shall  prevent  such  third  person  from  vindicating  his  claim  to 
the  property  by  any  proper  action. 

Sec.  269.  Return  of  papers. — The  officer  must  file  the  warrant 
with  his  proceedings  indorsed  thereon,  with  the  clerk  of  the  court 
within  twenty  days  after  taking  the  property  mentioned  therein. 

Sec.  270.  Final  judgment. — On  trial,  the  court  shall  adjudge  the 
property  to  the  plaintiff,  or  to  the  defendant,  as  the  law  and  facts 
warrant,  together  with  such  damages  and  costs  as  either  party  estab- 
lishes a  right  to  recover. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  59 

Chapter  X. 

TO  ESTABLISH  TITLES  TO  REAL  PROPERTY. 

Sec.  271.  Power  of  Circuit  Courts  to  establish  title  to  real  estate. — 
Any  and  all  Circuit  Courts  in  the  Canal  Zone  shall  have  power  to 
inquire  into  the  condition  of  any  title  of  or  interest  in  any  land  in 
the  circuit  in  which  the  court  is  held  and  to  make  all  such  orders, 
judgments  and  decrees  as  may  be  necessary  to  determine  and  estab- 
lish said  title  or  interest,  legal  or  equitable,  against  all  persons  known 
or  unknown,  and  all  liens  existing  on  such  lands,  whether  by  statute, 
judgment,  mortgage,  deed  of  trust  or  otherwise. 

Sec  272.  Who  may  sue. — It  shall  be  lawful  for  any  person  claim- 
ing title  to  any  land  in  such  circuit  and  for  all  claiming  under  such 
person,  to  file  a  petition  in  the  Circuit  Court  in  which  the  land5.or  a 
part  thereof,  are  situated  praying  for  a  decree  establishing  and  con- 
firming his  said  title. 

By  resolution  of  the  Isthmian  Canal  Commission,  the  General 
Counsel  of  said  Commission,  or  the  Prosecuting  Attorney  of  the 
Canal  Zone,  or  other  legal  officer  of  said  Commission  named  in  said 
resolution,  may  file  such  petition  in  any  Circuit  Court  of  a  circuit  in 
the  Canal  Zone  wherein  lands  are  situated,  the  title  of  which  is 
claimed  to  be  either  in  the  United  States  Government,  the  Isthmian 
Canal  Commission,  or  the  Panama  Railroad  Company. 

Sec  273.  Contents  of  petitio?i,  verification-. — Any  number  of  par- 
cels of  land  may  be  included  in  one  petition,  or  separate  petitions  may 
be  filed,  as  the  petitioner  may  elect. 

Said  petition  shall  state  clearly  the  description  of  said  lands,  the 
character  and  extent  of  the  estate  claimed  by  the  petitioner,  and 
from  whom,  and  when,  and  by  what  mode  he  derived  his  title  thereto. 
It  shall  give  the  names  of  all  persons  owning  or  claiming  any  estate 
or  interest  in  said  lands,  or  any  part  thereof,  and  also  all  persons  who 
shall  be  in  possession  of  said  land,  or  any  part  thereof,  and  also  all 
persons  to  whom  any  such  lands  shall  have  been  conveyed,  and  their 
residences,  so  far  as  the  same  are  known  to  said  petitioner,  and  if  no 
persons  are  known  to  said  petitioner  it  shall  be  so  stated  in  said  peti- 
tion. 

Should  said  petition  be  filed  by  a  private  party  it  shall  be  verified 
by  the  said  petitioner  or  by  the  agent  of  said  petitioner ;  and  the  party 
so  swearing  falsely  shall  be  deemed  guilty  of  perjury  and  punished 
accordingly,  and  shall  be  liable  in  damages  to  any  person  injured  by 
such  false  statements,  to  be  recovered  in  an  action  in  any  court  having 
jurisdiction  thereof. 

If  said  petition  is  filed  under  the  direction  of  the  Isthmian  Canal 
Commission  the  same  need  not  be  verified. 


60  CODE    OF    CIVIL    PROCEDUKE    OF    THE    CANAL    ZONE. 

Sec.  274.  Summons. — All  persons  so  named  in  said  petition  shall 
be  made  defendants,  and  shall  be  notified  of  said  suit  by  summons,  if 
residents  of  the  Canal  Zone,  in  the  same  manner  as  is  now  or  may 
hereafter  be  required  by  law:  Provided,  That  the  notice  specified  in 
this  act  shall  be  the  only  publication  notice  required,  in  either  the 
case  of  residents,  non-residents  or  otherwise.  All  other  persons  shall 
be  deemed  and  taken  as  defendants,  by  the  name  or  designation  of 
"All  whom  it  may  concern." 

Sec.  275.  Clerics  docket,  notice. — It  shall  be  the  duty  of  the  clerk 
of  the  court  in  which  said  petition  is  filed,  to  enter  in  a  separate  book 
or  books  to  be  kept  for  that  purpose,  the  name  of  the  petitioner  and 
defendant,  the  date  of  filing  said  petition,  and  a  description  of  all  the 
lands  included  therein,  which  record  shall  at  all  times  be  open  to  the 
public.  All  lands  in  each  separate  administrative  district  shall  be 
entered  on  the  same  page,  or  consecutive  pages,  with  an  index  to 
said  book  or  books,  showing  on  what  page  any  such  separate  adminis- 
trative district  may  be  found.  Said  clerk  shall  also,  in  all  cases, 
cause  publication  of  notice  to  be  made  of  the  filing  of  said  petition, 
which  notice  shall  be  entitled  "  Land  title  notice "  and  shall  be 
substantially  as  follows : 

A  B,  C  D,  etc.  (here  giving  the  names  of  all  known  defendants,  if 
any) and  to  all  whom  it  may  concern: 

Take  notice. — That  on  the day  of A.  D.  19__  a  petition 

was  filed  by  the  undersigned,  in  the  Circuit  Court  of 

Judicial  Circuit,  of  the  Canal  Zone,  to  establish  his  title  to  the  follow- 
ing described  land  (here  insert  a  full  description  of  the  land  in  said 

petition).     Now,  unless  you  appear  at  the term  of  said 

court  (naming  the  first  term,  after  thirty  days  from  the  first  insertion 
of  said  notice)  and  show  cause  against  such  application,  said  petition 
shall  be  taken  for  confessed,  and  the  title  or  interest  of  said  petitioner 
will  be  deemed  and  established  according  to  the  prayer  of  said  peti- 
tion, and  you  forever  barred  from  disputing  the  same. 

E  F,  Petitioner. 

G  P,  Solicitor. 

Said  notice  shall  be  published  once  a  week  for  three  weeks  succes- 
sively in  a  newspaper  or  newspapers  of  general  circulation  published 
in  the  Canal  Zone,  or  in  the  Cities  of  Colon  or  Panama,  and  the  first 
insertion  shall  be  at  least  thirty  days  prior  to  said  term  of  court. 

Sec.  276.  Demurrer,  answer.— Any  person  interested  may  oppose 
any  such  petition,  and  file  his  demurrer  or  answer  thereto  on  or  before 
the  third  day  of  the  term  of  court  named  in  said  publication  notice, 
unless  the  time  be  extended  by  order  of  court.  Said  answer  shall 
admit,  confess  or  avoid  or  traverse  all  the  material  allegations  of  the 
petition  or  ask  for  affirmative  relief,  and  shall,  except  when  made  by 
guardians  ad  litem,  be  verified  by  the  affidavit  either  of  the  defendant 
or  his  agent,  in  the  same  manner  as  above  required  for  the  petition. 
Said  answer  shall  have  no  other  nor  greater  weight  than  the  petition. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  61 

Sec.  277.  Further  procedure. — If  no  demurrer  or  answer  shall  be 
filed  by  the  third  day  of  said  term,  or  by  the  day  allowed  by  the  order 
of  said  court,  as  above  provided,  the  petition  may  be  taken  for  con- 
fessed, and  a  decree  entered  according  to  the  prayer  of  said  petition, 
upon  proof  of  the  facts  stated  in  said  petition ;  but  if  any  person 
shall  file  an  answer,  as  aforesaid,  to  such  petition,  the  court  may  hear 
evidence,  or  order  a  reference  to  a  referee  or  commissioner  to  take 
evidence  and  report,  under  the  procedure  of  Chapter  VII  of  this  code. 
If  the  petition  includes  more  than  one  parcel  of  land  and  no  de- 
murrer or  answer  shall  be  filed  as  to  some  of  said  parcels,  the  court, 
may  enter  a  decree,  pro-confesso,  as  to  those  parcels  as  to  which  no 
demurrer  or  answer  shall  be  filed,  and  hear  evidence  or  order  a  refer- 
ence's to  the  remaining  parcels. 

Sec  278.  Decide  of  court,  not  to  affect  liens. — It  shall  be  competent 
for  said  courts,  in  all  such  decrees,  whether  pro-confesso  or  on  the 
report  of  any  referee  or  special  commissioner  or  othewise,  to  deter- 
mine and  decree  in  whom  the  title  in  any  or  all  of  the  lands  described 
in  said  petition  is  vested,  whether  in  the  petitioner,  or  in  any  other  of 
the  parties  before  the  court ;  but  said  decree  shall  not  in  anywise  affect 
any  lien  or  liens  to  which  said  title  may  be  subject,  and  which  may  be 
by  mortgage,  deed  of  trust,  judgment,  statute,  liens,  or  otherwise,  but 
shall  leave  all  such  liens  to  be  ascertained  or  established  in  some  other 
proceeding,  or  to  be  enforced  as  the  parties  holding  them  may  see  fit. 

Sec  279.  Reopening  decree,  subsequent  action. — Said  decree  of 
said  court,  whenever  entered,  shall  be  forever  binding  and  conclu- 
sive: Provided,  That  any  decree  shall  be  subject  to  be  opened,  modi- 
fied, or  set  aside  on  appeal  or  writ  of  error,  sued  out  within  two 
years  after  the  entry  of  such  decree:  And  provided  further,  That 
insane  persons  and  minors  shall  have  two  years  after  their  disa- 
bilities are  removed  to  prosecute  a  writ  of  error  upon  said  decree: 
Provided  further,  That  any  decree  entered  upon  any  petition  or 
answer,  asking  for  affirmative  relief  which  does  not  make  defendant, 
by  name,  all  persons  who  shall  be  in  possession  of  such  land,  or 
any  part  thereof,  at  the  time  of  the  filing  of  such  petition  or  which 
does  not  make  defendant,  by  name,  all  persons  to  whom  any  such 
land  shall  have  been  conveyed,  if  said  persons'  names  can  be  ascer- 
tained, shall  be  absolutely  void  as  to  such  person  omitted,  but 
shall  be  final  and  conclusive  as  to  all  others:  And  provided  furtliei-. 
That  any  defendant  who  shall  not  be  actually  served  with  a  sum- 
mons in  the  suit  in  which  such  decree  may  be  rendered,  shall  have 
allowed  to  him  one  year  after  the  entry  of  such  decree  within  which, 
upon  petition  to  the  court  rendering  the  same,  to  have  the  said  decree 
vacated  as  to  him.  and  if  it  shall  appear  upon  the  bearing  of  such 
petition  that,  such  decree  ought  not  to  have  been  made  against  such 
defendant,  the  same  may  be  vacated,  set  aside,  altered  or  modified  as 

803a— 07—  m 5* 


62  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE 

shall  appear  just,  otherwise  the  same  shall  be  ordered  to  stand 
affirmed  against  said  defendant.  Provided  this  Section  shall  not  be 
so  construed  as  to  prevent  the  complainant  from  beginning  a  subse- 
quent action  against  any  person  whomsoever  in  possession  of  such 
land  and  whose  presence  on  said  land  was  unknown,  or  could  not  have 
been,  by  reasonable  diligence,  discovered  at  the  time  the  action  was 
begun. 

Sec.  280.  Representatives. — Executors,  administrators,  conserva- 
tors, guardians  and  trustees  shall  be  entitled  to  proceed,  under  this 
act,  in  behalf  of  the  interest  and  right  they  represent. 

Chapter  XI. 

ne  exeat. 

Sec.  281.  *\Yhen  frit  may  issue. — Writs  of  ne  exeat  republica  may 
hereafter  be  granted  by  the  circuit  court,  as  Avell  in  cases  where  the 
debt  or  demand  is  not  actually  due,  but  exists  fairly  and  bona  fide 
in  expectancy  at  the  time  of  making  the  application,  as  in  cases  where 
the  demand  is  due;  and  it  shall  not  be  necessary,  to  authorize  the 
granting  of  such  writ  of  ne  exeat,  that  the  applicant  should  show 
that  his  debt  or  demand  is  purely  of  an  equitable  character. 

Sec.  282.  In  favor  of  co-obligors  or  co-debtors. — In  case  of  joint,  or 
joint  and  several  obligors  or  debtors,  if  one  or  more  of  them  be  about 
to  remove  without  the  Canal  Zone,  taking  their  property  with  them, 
leaving  one  or  more  co-obligors  or  co-debtors  bound  with  them  for 
the  payment  of  any  sum  of  money,  or  for  the  delivery  of  any  article 
of  property,  or  for  the  conveyance  of  land  at  a  certain  time,  which 
time  shall  not  have  arrived  at  the  time  of  such  intended  removal,  such 
co-obligor  or  co-debtor  who  remains  shall  be  entitled,  upon  applica- 
tion, to  a  writ  of  ne  exeat,  to  compel  the  co-obligor  or  co-debtor  who 
is  about  to  remove  to  secure  the  payment  of  his  part  of  the  sum  to  be 
paid,  or  the  delivery  of  the  property,  or  to  convey,  or  to  join  in  the 
conveyance  of  the  land.  The  writ  of  ne  exeat  may  also  issue  in  cases 
of  security,  on  application  of  a  surety,  against  the  principal  or  co- 
surety, when  the  obligation  or  debt  shall  not  yet  be  due,  and  the 
principal  or  co-surety  is  about  to  remove  out  of  the  Canal  Zone. 

Sec.  283.  Procedure  when  (/ranted  by  judge. — When  a  writ  of  ne 
exeat  is  granted  by  a  judge,  he  shall  direct  the  clerk  of  the  court 
to  which  the  writ  is  to  be  returnable  to  issue  the  same. 

Sec.  284.  Returnable  where. — All  writs  of  ne  exeat  shall  be  return- 
able into  the  court  out  of  which  they  issue. 

Sec.  285.  When  judge  absent. — When  no  judge  authorized  to  issue 
writs  of  ne  exeat  is  present  in  the  circuit,  or  being  present,  is  unable 
or  incapacitated  to  act.  any  other  Circuit  judge  may  order  the 
issuing  of  such  writs. 


CODE   OF    CIVIL  PROCEDURE   OP   THE   CANAL  ZONE.  63 

Sec.  286.  Bill  or  petition  necessary — affidavit — bond,  suit  on. — 
No  writ  of  ne  exeat  shall  be  granted  but  on  petition  filed,  and  affidavit 
to  the  truth  of  the  allegations  therein  contained.  Upon  the  granting 
of  any  such  writ,  the  judge  shall  indorse  or  cause  to  be  indorsed  upon 
the  petition,  in  what  penalty  bond  and  security  shall  be  required  of 
defendant.  Said  judge  shall  also  take*  or  cause  to  be  taken  of  the 
complainant,  before  the  writ  shall  issue,  bond  with  good  and  sufficient 
surety,  in  such  sum  as  the  judge  shall  deem  proper,  conditioned  that 
the  said  complainant  will  prosecute  his  petition  with  effect,  and  that 
he  will  reimburse  to  the  defendant  such  damages  and  costs  as  he  shall 
wrongfully  sustain  by  occasion  of  the  said  writ.  If  any  defendant 
to  such  writ  of  ne  exeat  shall  think  himself  aggrieved,  he  may  bring 
suit  on  such  bond,  and  if,  on  trial,  it  shall  appear  that  such  writ  of 
ne  exeat  was  prayed  for  without  a  just  cause,  the  person  injured  shall 
recover  damages,  to  be  assessed  as  in  other  cases  on  penal  bonds. 

Sec.  287.  Form  of  writ — bond  by  defendant — temporary  departure 
no  breach. — The  writ  of  ne  exeat  shall  contain  a  summons  for  the 
defendant  to  appear  in  the  proper  court,  and  answer  the  petition,  and 
upon  the  writ  being  served  upon  the  said  defendant,  he  shall  give 
bond,  with  surety  in  the  sum  endorsed  on  such  writ,  conditioned  that 
he  will  not  depart  the  Canal  Zone  without  leave  of  the  said  court, 
and  that  he  will  render  himself  in  execution  to  answer  any  judgment 
or  decree  which  the  said  court  may  render  against  him ;  and  in  default 
of  giving  such  security,  he  may  be  committed  to  jail,  as  in  other  cases, 
for  the  want  of  bail.  No  temporary  departure  from  the  Canal  Zone 
shall  be  considered  as  a  breach  of  the  condition  of  the  said  bond,  if  he 
shall  return  before  personal  appearance  shall  be  necessary  to  answer 
or  perform  any  judgment,  order  or  decree  of  said  court. 

Sec.  288.  Surrender  of  defendant  by  surety. — The  surety  in  any 
bond  for  the  defendant,  as  aforesaid,  may,  at  any  time  before  the 
said  bond  shall  be  forfeited,  surrender  the  said  defendant,  in  exoner- 
ation of  himself,  in  the  same  manner  that  bail  may  surrender  their 
principal,  and  obtain  the  same  discharge. 

Sec.  289.  Proceedings  on  return  of  writ. — On  the  return  of  the  writ 
of  ne  exeat,  if  the  same  shall  have  been  duly  served,  the  court  shall 
proceed  therein  as  in  other  cases,  if  the  time  of  performance  of  the 
duty  or  obligation  of  the  defendant  has  expired;  if  not,  then  the 
proceeding  shall  be  stayed  until  it  has  expired. 

Sec.  290.  Quashing  or  setting  aside  writ. — Nothing  contained  in 
the  preceding  section  shall  prevent  the  court  from  proceeding  at  any 
time  to  determine  whether  the  writ  ought  not  to  be  quashed  or  set 
aside.  The  writ  may  be  set  aside  at  the  end  of  six  months  upon  the 
defendant's  turning  into  court  such  money  or  property  as  he  pos- 
sesses, excluding  necessary  wearing  apparel,  and  filing  an  affidavit 
that  he  is  possessed  of  no  further  property. 


64  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Chapter  XII. 

RULES  OF   EVIDENCE AFFIDAVITS  AMD  DEPOSITIONS PERPETUATION   OF 

TESTIMONY. 

Rules  of  evidence. 

Sec.  291.  Preponderance  of  evidence,  how  to  determine. — In  deter- 
mining where  the  preponderance  or  superior  weight  of  evidence  on 
the  issues  involved  lies,  the  witnesses,  their  manner  of  testifying,  their 
intelligence,  their  means  and  opportunity  of  knowing  the  facts  to 
which  they  are  testifying,  the  nature  of  the  facts  to  which  they  tes- 
tify, the  probability  or  improbability  of  their  testimony,  their  interest 
or  want  of  interest,  and  also  their  personal  credibility,  so  far  as  the 
same  may  legitimately  appear  upon  the  trial,  must  be  considered. 
The  court  may  also  consider  the  number  of  witnesses,  though  the 
preponderance  is  not  necessarily  with  the  greatest  number. 

Sec.  292.  The  same  rules  in  all  cases  in  all  courts  of  the  Zone. — The 
rules  of  evidence  shall  be  the  same  in  all  courts  of  the  Canal  Zone  and 
upon  every  trial,  unless  otherwise  expressly  provided. 

Sec.  293.  Matter  judicially  recognized. — The  existence  and  terri- 
torial extent  of  the  Canal  Zone,  its  forms  of  government,  and  symbols 
of  nationality,  the  law  of  nations,  the  admiralty  and  maritime  courts 
of  the  world  and  their  seals,  the  political  constitution  and  history  of 
the  United  States  and  of  the  Canal  Zone,  the  seals  of  the  several 
departments  of  the  United  States,  and  the  states  of  the  Union,  and  of 
the  Canal  Zone  and  Republic  of  Panama,  public  and  private,  and  offi- 
cial acts  of  the  legislative,  executive,  and  judicial  departments  of  the 
United  States  and  of  the  Canal  Zone,  the  laws  of  nature,  and  the 
measure  of  time,  the  geographical  divisions  and  political  history  of 
the  world,  and  all  similar  matters  of  public  knowledge  shall  be  judi- 
cially recognized  by  the  court  without  the  introduction  of  proofs;  but 
the  court  may  receive  evidence  upon  any  of  these  subjects,  when  it 
shall  find  it  necessary  for  its  own  information,  and  may  resort  for  its 
aid  to  appropriate  books,'  documents,  or  evidence. 

Sec.  294.  Personal  knowledge  and  hearsay  evidence. — A  witness 
can  testify  to  those  facts  only  which  he  knows  of  his  own  knowledge ; 
that  is,  which  are  derived  from  his  own  perception,  except  in  those 
few  express  cases  in  which  his  opinions  or  inferences  from  the  decla- 
rations of  others,  as  hereinafter  stated,  are  admissible. 

Sec.  295.  Rights  of  party  not  prejudiced,  by  act,  declaration,  or 
omission  of  another. — The  rights  of  a  party  can  not  be  prejudiced  by 
the  declaration,  act,  or  omission  of  another,  except  by  virtue  of  a 
particular  relation  between  them,  as  hereinafter  stated;  therefore 
proceedings  against  one  can  not  affect  another. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  65 

Sec.  296.  Exception  where  one  derives  title  to  real  property  from 
another. — Where,  however,  one  derives  title  to  real  property  from 
another,  the  declaration,  act,  or  omission  of  the  latter,  while  holding 
the  title,  in  relation  to  the  property,  is  evidence  against  the  former. 

Sec  297.  Exception  where  declaration,  act,  or  omission  forms  part 
of  the  transaction. — Where,  also,  the  declaration,  act,  or  omission 
forms  part  of  a  transaction,  which  is  itself  a  fact  in  dispute,  or  evi- 
dence of  that  fact,  such  declaration,  act,  or  omission,  is  evidence  as 
part  of  the  transaction.  Such  evidence  may  be  termed  admissible 
as  constituting  a  part  of  the  res  gestae. 

Sec  298.  Where  dispute  relates  to  obligation  or  duty  of  third  per- 
son, prima  facie  evidence. — Where  the  question  in  dispute  between  the 
parties  is  the  obligation  or  duty  of  the  third  person  whatever  would 
be  the  evidence  for  or  against  such  person  is  prima  facie  evidence 
between  the  parties;  prima  facie  evidence  being  that  which  suffices 
for  the  proof  of  a  particular  fact,  until  contradicted  and  overcome 
by  other  evidence. 

Sec  299.  Hearsay  evidence  of  questions  of  pedigree. — The  declara- 
tion, act,  or  omission  of  a  member  of  a  family  who  is  not  living,  or 
is  outside  the  jurisdiction  of  the  Canal  Zone,  is  admissible  as  evidence 
of  pedigree  of  relationship,  or  family  genealogy  in  cases  where  pedi- 
gree, relationship,  or  family  genealogy  are  questions  at  issue. 

Sec  300.  Declaration,  act,  or  omission  of  deceased  person  against 
his  interest. — The  declaration,  act,  or  omission  of  a  deceased  person, 
having  sufficient  knowledge  of  the  subject,  against  his  pecuniary 
interest,  is  admissible  as  evidence  to  that  extent  against  his  successor 
in  interest. 

Sec  301.  When  part  of  acts,  declaration,  or  writing  given  in 
evidence,  the  remainder  available  to  opposite  party. — When  part  of 
an  act,  declaration,  conversation,  or  writing  is  given  in  evidence  by 
one  party,  the  whole  of  the  same  subject  may  be  inquired  into  by 
the  other,  and  when  a  detached  act,  declaration,  conversation,  or 
writing  is  given  in  evidence,  any  other  act,  declaration,  conversation 
or  writing  which  is  necessary  to  make  it  understood,  may  also  be 
given  in  evidence. 

Sec  302.  Original  writing  must  ordinarily  be  produced. — There 
can  be  no  evidence  of  the  contents  of  a  writing,  other  than  the  writ- 
ing itself,  except  in  the  following  cases: 

1.  When  the  original  has  been  lost  or  destroyed,  in  which  case 
proof  of  the  loss  or  destruction  must  first  be  made ; 

2.  When  the  original  is  in  possession  of  the  party  against  whom 
the  evidence  is  offered,  who  fails  to  produce  it  after  reasonable  notice; 

3.  When  the  original  is  a  record  or  other  document  in  the  custody 
of  a  public  officer; 


66  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

4.  When  the  original  has  been  recorded  and  a  certified  copy  of  the 
record  is  made  evidence  by  law ; 

5.  When  the  original  consists  of  numerous  accounts  or  other  docu- 
ments, which  cannot  be  examined  in  court  without  great  loss  of  time 
and  the  fact  sought  to  be  established  from  them  is  only  the  general 
result  of  the  whole. 

6.  The  books  of  account  and  documents  of  merchants,  corpora- 
tions, and  business  men  kept  in  the  regular  course  of  business  and 
shown  to  be  genuine  and  the  entries  therein  to  have  been  made  in 
the  ordinary  course  of  business  before  the  possibility  of  litigation 
arising  out  of  the  items  to  which  they  relate,  shall  be  prima  facie 
evidence  of  what  they  purport  to  state,  and  it  shall  not  be  necessary 
under  these  circumstances  to  produce  the  parties  making  the  original 
entries. 

Sec.  303.  Written  agreement  presumed  to  contain  all  the  terms  of 
the  agreement. — When  the  terms  of  an  agreement  have  been  reduced 
to  writing  by  the  parties,  it  is  to  be  considered  as  containing  all 
those  terms,  and  therefore  there  can  be,  between  the  parties  and  their 
representatives  or  successors  in  interest,  no  evidence  of  the  terms  of 
the  agreement  other  than  the  contents  of  the  writing,  except  in  the 
following  cases: 

1.  Where  a  mistake  or  imperfection  of  the  writing,  or  its  failure 
to  express  the  true  intent  and  agreement  of  the  parties,  is  put  in 
issue  by  the  pleadings; 

2.  Where  the  validity  of  the  agreement  is  the  fact  in  dispute.  But 
this  section  does  not  exclude  evidence  of  the  circumstances  under 
which  the  agreement  was  made  with  the  view  of  better  ascertaining 
its  meaning,  to  which  it  relates,  or  evidence  to  establish  its  illegality 
or  fraud. 

The  term  "  agreement "  includes  deeds  and  instruments  conveying 
real  estate,  and  wills  as  well  as  contracts  between  parties. 

Sec.  304.  Writing  to  be  interpreted  according  to  legal  meaning. — 
The  language  of  a  writing  is  to  be  interpreted  according  to  the 
legal  meaning  it  bears  in  the  place  of  its  execution,  unless  the  parties 
have  reference  to  a  different  place. 

Sec.  305.  Construction  of  a  statute  or  instrument  containing  sev- 
eral provisions. — In  the  construction  of  a  statute  the  intention  of  the 
legislature,  and  in  the  construction  of  an  instrument,  the  intention 
of  the  parties,  is  to  be  pursued;  and  when  a  general  and  particular 
provision  are  inconsistent,  the  latter  is  paramount  to  the  former. 
So  a-  particular  intent  will  control  a  general  one  that  is  inconsistent 
with  it. 

Sec.  306.  For  construction  of  an  instrument  circumstances  may  be 
shown. — For  the  proper  construction  of  an  instrument,  the  circum- 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  67 

stances  under  which  it  is  made,  including  the  situation  of  the  subject 
of  the  instrument  and  the  parties  to  it,  may  also  be  shown,  so  that  the 
judge  may  be  placed  in  the  position  of  those  whose  language  he  is  to 
interpret. 

Sec.  307.  Terms  of  a  writing  'presumed  to  be  in  their  ordinary 
sense. — The  terms  of  a  writing  are  presumed  to  have  been  used  in 
the  primary  and  general  acceptation,  but  evidence  is  nevertheless 
admissible  that  they  have  a  local,  technical,  or  otherwise  peculiar 
signification,  and  were  so  used  and  understood  in  the  particular 
instance,  in  which  case  the  agreement  must  be  construed  accordingly. 

Sec.  308.  Instruments  partly  written  and  partly  printed. — When 
an  instrument  consists  partly  of  written  words  and  partly  of  a 
printed  form  and  the  two  are  inconsistent,  the  former  controls  the 
latter. 

Sec  309.  Experts  and  interpreters  to  be  used  in  explaining  certain 
writings.— When  the  characters  in  which  an  instrument  is  written 
are  difficult  to  be  deciphered  or  the  language  is  not  understood  by  the 
court,  the  evidence  of  a  person  skilled  in  deciphering  the  characters, 
or  who  understands  the  language,  is  admissible  to  declare  the  charac- 
ters or  meaning  of  the  language. 

Sec.  310.  Where  intention  of  different  parties  to  instruments  not 
the  same. — When  the  terms  of  an  agreement  have  been  intended  in  a 
different  sense  by  the  different  parties  to  it,  that  sense  is  to  prevail 
against  either  party  in  which  he  supposed  the  other  understood  it, 
and  when  different  constructions  of  a  provision  are  otherwise  equally 
proper,  that  is  to  be  taken  which  is  the  most  favorable  to  the  party 
in  whose  favor  the  provision  was  made. 

Sec.  311.  Construction  in  favor  of  natural  right. — When  a  statute 
or  instrument  is  equally  susceptible  of  two  interpretations,  one  in 
favor  of  natural  right  and  the  other  against  it,  the  former  is  to  be 
adopted. 

Sec.  312.  Material  allegations  only  need  be  proved. — No  allegation 
contained  in  the  complaint  or  answer  immaterial  to  the  issues  need 
be  proved. 

Sec.  313.  Evidence  must  be  relevant. — Evidence  must  correspond 
with  the  substance  of  the  material  allegations  and  be  relevant  to  the 
questions  in  dispute.  Collateral  questions  must  therefore  be  avoided. 
It  is,  however,  within  the  discretion  of  the  court  to  permit  the  inquiry 
into  a  collateral  fact  when  such  fact  is  directly  connected  with  the 
question  in  dispute  and  is  essential  to  its  proper  determination,  or 
when  it  affects  the  credibility  of  a  witness. 

Sec.  314.  Party  must  prove  his  affirmative  allegation. — Each  party 
must  prove  his  own  affirmative  allegation.  Evidence  need  not  be 
given  in  support  of  a  negative  allegation  except  when  such  negative 
allegation  is  an  essential  part  of  the  statement  of  the  right  or  title 


68  CODE    OF    CIVIL   PEOCEDUEE    OF    THE    CANAL   ZONE. 

on  which  the  cause  of  action  or  defense  is  founded,  nor  even  in  such 
case  when  the  allegation  is  a  denial  of  the  existence  of  a  document 
the  custody  of  which  belongs  to  the  opposite  party. 

Sec.  315.  To  what  facts  evidence  may  he  given. — In  conformity 
with  the  preceding  provision  evidence  may  be  given  upon  a  trial  of 
the  following  facts: 

1.  The  precise  fact  in  dispute; 

2.  The  act,  declaration,  or  omission  of  a  party  as  evidence  against 
such  party; 

3.  An  act  or  declaration  of  another  in  the  presence  and  within  the 
observation  of  a  party,  and  his  conduct  in  relation  thereto,  where 
the  act  or  declaration  is  such  as  naturally  to  call  for  action  or  com- 
ment by  such  party; 

4.  The  act  or  declaration,  verbal  or  written,  of  a  deceased  person,  or 
a  person  not  in  the  Canal  Zone,  in  respect  to  the  relationship,  birth, 
marriage,  or  death  of  any  person  related  by  blood  or  marriage  to 
such  deceased  person  or  persons;  the  act  or  declaration  of  a  deceased 
person  done  or  made  against  his  interests  in  respect  to  his  real 
property ; 

5.  After  proof  of  a  partnership  or  agency,  the  act  or  declaration 
of  a  partner  or  agent  of  the  party  within  the  scope  of  the  partnership 
or  agency  during  its  existence.  The  same  rule  applies  to  the  act  or 
declaration  of  a  joint  owner,  or  joint  debtor,  or  other  person  jointly 
interested  with  the  party; 

6.  After  proof  of  a  conspiracy,  the  act  or  declaration  of  a  con- 
spirator relating  to  the  conspiracy; 

7.  The  act,  declaration,  or  omission  forming  part  of  a  transaction ; 

8.  The  testimony  of  a  witness  deceased  or  out  of  the  jurisdiction, 
or  unable  to  testify,  given  in  a  former  action  between  the  same  par- 
ties, relating  to  the  matter; 

9.  The  opinion  of  a  witness  respecting  the  identity  or  handwriting 
of  a  person,  when  he  has  knowledge  of  the  person  or  handwriting; 
his  opinion  on  a  question  of  science,  art,  or  trade,  when  he  is  skilled 
therein ; 

10.  The  opinion  of  a  subscribing  witness  to  a  writing,  the  validity 
of  which  is  in  dispute,  respecting  the  mental  sanity  of  the  signer; 
and  the  opinion  of  an  intimate  acquaintance  respecting  the  sanity  of 
a  person,  the  reason  for  the  opinion  being  given ; 

11.  Common  reputation  existing  previous  to  the  controversy,  re- 
specting facts  of  a  public  or  general  interest  more  than  thirty  years 
old,  and  in  cases  of  pedigree  and  boundary; 

12.  Usage,  to  explain  the  true  character  of  an  act,  contract,  or  in- 
strument, where  such  true  character  is  not  otherwise  plain;  but 
usage  is  never  admissible  except  as  an  instrument  of  interpretation ; 

13.  Monument  and   inscription   in   public   places,  as  evidence  of 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  69 

common  reputation;  and  entries  in  family  bibles  or  other  family 
books  or  charts;  engravings  on  rings,  family  portraits  and  the  like, 
as  evidence  of  pedigree; 

14.  The  contents  of  a  writing,  when  oral  evidence  thereof  is  ad- 
missible ; 

15.  Any  other  facts  from  which  the  facts  in  issue  are  presumed  or 
are  logically  inferable; 

16.  Such  facts  as  serve  to  show  the  credibility  of  a  witness  by  affect- 
ing his  reputation  for  truth,  and  by  showing  his  motives,  and  by  evi- 
dence of  contradictory  statements  made  by  him  as  to  the  subject- 
matter  of  his  evidence. 

Sec.  316.  Public  writings. — The  written  acts  or  record  of  the  acts 
of  the  sovereign  authority,  of  official  bodies  and  tribunals  and  of  pub- 
lic officers,  legislative,  judicial,  and  executive  of  the  Canal  Zone,  or  of 
the  United  States,  or  of  any  State  of  the  United  States  or  of  a  for- 
eign country,  and  public  records  kept  in  the  Canal  Zone  of  private 
writings  are  public  writings.  A  copy  of  a  public  writing,  duly  certi- 
fied to  be  a  true  copy  thereof,  is  admissible  evidence  in  like  cases  and 
with  like  effect  as  the  original  writing. 

Sec.  317.  Printed  laws  of  the  State  or  country. — Books  printed  or 
published  under  the  authority  of  the  United  States,  or  one  of  the 
States  of  the  United  States,  or  a  foreign  country,  and  purporting  to 
contain  statutes,  codes,  or  other  written  law  of  such  State  or  country 
or  proved  to  be  commonly  admitted  in  the  tribunals  of  such  State  or 
country  as  evidence  of  the  written  law  thereof,  are  admissible  in  the 
Canal  Zone  as  evidence  of  such  law. 

Sec  318.  Attested  copy  of  foreign  law. — A  copy  of  the  written  law 
or  other  public  writing  of  any  state  or  country  attested  by  the  cer- 
tificate of  the  officer  having  charge  of  the  original,  under  the  seal  of 
the  state  or  country,  is  admissible  as  evidence  of  such  law  or  writing. 

Sec  319.  Oral  proof  of  United  States  or  foreign  unwritten  law. — 
The  oral  testimony  of  witnesses,  skilled  therein,  is  admissible  as  evi- 
dence of  the  unwritten  law  of  the  United  States  or  of  any  State  of  the 
United  States,  or  foreign  country,  as  are  also  printed  and  published 
books  of  reports  of  decisions  of  the  courts  of  the  United  States  or  of 
such  State  or  country,  or  proved  to  be  commonly  admitted  in  such 
courts. 

Sec  320.  Proof  of  domestic  judicial  records. — A  judicial  record  of 
the  proceedings  in  a  court  of  justice,  or  of  official  acts  of  a  judicial 
officer  in  an  action  or  special  proceeding  within  the  United  States  or 
any  State  or  Territory  thereof,  or  within  the  Canal  Zone,  may  be 
proved  by  the  production  of  the  original  or  by  a  copy  thereof,  certi- 
fied by  the  clerk  or  other  person  having  the  legal  custody  thereof, 
with  the  seal  of  the  court  annexed,  together  with  a  certificate  of  the 


70  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

chief  judge  or  presiding  magistrate  that  the  attestation  is  in  due 
form. 

Sec.  321.  Proof  of  foreign  judicial  records. — A  judicial  record  of  a 
foreign  country  may  be  proved  by  the  attestation  of  the  clerk,  with 
the  seal  of  the  court  annexed,  if  there  be  a  clerk  and  seal,  or  of  the 
legal  keeper  of  the  record,  with  the  seal  of  his  office  annexed,  if  there 
be  a  seal,  together  with  a  certificate  of  the  chief  judge  or  presiding 
magistrate  that  the  person  making  the  attestation  is  the  clerk  of  the 
court,  or  legal  keeper  of  the  record,  and,  in  either  case,  that  the  signa- 
ture of  such  person  is  genuine  and  that  the  attestation  is  in  due  form. 
The  signature  of  the  chief  judge  or  presiding  magistrate  must  be 
authenticated  by  the  certificate  of  a  minister  or  ambassador,  or  a 
consul,  vice-consul,  or  consular  agent  of  the  United  States  in  such 
foreign  country. 

Sec  322.  Proof  of  foreign  judicial  record  by  examined  copy. — A 
copy  of  the  judicial  record  of  a  foreign  country  is  also  admissible  in 
evidence,  upon  proof : 

1.  That  the  copy  has  been  compared  by  the  witness  with  the  origi- 
nal, and  is  an  exact  transcription  of  the  whole ; 

2.  That  such  original  was  in  the  custody  of  the  clerk  of  the  court, 
or  other  legal  keeper  of  the  same ; 

3.  That  the  copy  is  duly  attested  with  the  seal,  if  there  prove  to  be 
a  seal  of  the  court  where  the  record  remains,  if  it  be  the  record  of  the 
court ;  or  if  there  be  no  such  seal,  or  if  it  be  not  the  record  of  the 
court,  by  the  signature  of  the  legal  keeper  of  the  original. 

Sec  323.  Effect  of  judgment. — The  effect  of  a  judgment  or  final 
order  in  an  action  or  special  proceeding  before  a  court  or  judge  of  the 
Canal  Zone  or  of  the  United  States,  or  of  any  State  or  Territory  of 
the  United  States,  having  jurisdiction  to  pronounce  the  judgment  or 
order,  shall  be  as  follows : 

1.  In  case  of  a  judgment  or  order  against  a  specific  thing,  or  in  re- 
spect to  the  probate  of  a  will,  or  the  administration  of  the  estate  of  a 
deceased  person,  or  in  respect  to  the  personal,  political,  or  legal  condi- 
tion or  relation  of  a  particular  person,  the  judgment  or  order  is  con- 
clusive upon  the  title  of  the  thing,  the  will  or  administration,  or  the 
condition  or  relation  of  the  person:  Provided,  That  the  probate  of  a 
will  or  granting  of  letters  of  administration  shall  only  be  prima  facie 
evidence  of  the  death  of  the  testator  or  intestate ; 

2.  In  other  cases  the  judgment  so  ordered  is,  in  respect  to  the 
matter  directly  adjudged,  conclusive  between  the  parties  and  their 
successors  in  interest  by  title  subsequent  to  commencement  of  the 
action  or  special  proceeding,  litigating  for  the  same  thing  and  under 
the  same  title  and  in  the  same  capacity. 

Sec  324.  What  is  deemed  to  have  been  adjudged  in  a  former  judg- 
ment.— That  only  is  deemed  to  have  been  adjudged  in  a  former  judg- 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  71 

ment  which  appears  upon  its  face  to  have  been  so  adjudged,  or  which 
was  actually  and  necessarily  included  therein  or  necessary  thereto. 

Sec.  325.  When  principal  bound  by  judgment  against  surety. — 
When  the  party  is  bound  by  a  record,  and  such  party  stands  in  the 
relation  of  surety  for  another,  the  latter  is  also  bound  from  the  time 
that  he  has  notice  of  the  action  or  proceeding,  and  an  opportunity  at 
the  surety's  request  to  join  in  the  defense. 

Sec  326.  Effect  of  judicial  record  of  a  court  in  the  United  States. — 
The  effect  of  a  judicial  record  of  a  court  of  the  United  States  or  of  a 
court  of  one  of  the  States  or  Territories  of  the  United  States,  is  the 
same  in  the  Canal  Zone  as  in  the  United  States,  or  in  the  State  or 
Territory  where  it  is  made,  except  that  it  can  only  be  enforced  here 
by  an  action  or  special  proceeding,  and  except,  also,  that  the  author- 
ity of  a  guardian,  or  executor  or  administrator  does  not  extend  beyond 
the  jurisdiction  of  the  Government  under  which  he  was  invested  with 
his  authority. 

Sec  327.  Effect  of  judicial  record  of  a  court  of  admiralty  for  a 
foreign  country. — The  effect  of  a  judicial  record  of  a  court  of  ad- 
miralty of  a  foreign  country  is  the  same  as  if  it  were  the  record  of  a 
court  of  admiralty  of  the  Canal  Zone. 

Sec  328.  Effect  of  other  foreign  judgment. — The  effect  of  a  judg- 
ment of  any  other  tribunal  of  a  foreign  country,  having  jurisdiction 
to  pronounce  the  judgment,  is  as  follows: 

1.  In  case  of  a  judgment  against  a  specific  thing,  the  judgment  is 
conclusive  upon  the  title  to  the  thing; 

2.  In  case  of  a  judgment  against  a  person,  the  judgment  is  pre- 
sumptive evidence  of  a  right  as  between  the  parties  and  their  suc- 
cessors in  interest  by  a  subsequent  title;  but  the  judgment  may  be 
repelled  by  evidence  of  a  want  of  jurisdiction,  want  of  notice  to  the 
party,  collusion,  fraud,  or  clear  mistake  of  law  or  fact. 

Sec  329.  How  judicial  record  may  be  impeached.— Any  judicial 
record  may  be  impeached  by  evidence  of  a  want  of  jurisdiction  in 
the  court  or  judicial  officer,  of  collusion  between  the  parties,  or  of 
fraud  in  the  party  offering  the  record,  in  respect  to  the  proceedings. 

Sec  330.  Proof  of  other  official  documents. — Official  documents 
may  be  proved,  as  follows : 

1.  Acts  of  the  Chief  Executive  of  the  Canal  Zone,  by  the  record  of 
his  office,  certified  by  his  secretary  under  the  seal  thereof,  if  there  be 
one ;  acts  of  the  Executive  of  the  United  States,  by  the  records  of  the 
Departments  of  the  United  States  Government,  wherein  are  con- 
tained the  records  of  such  acts,  certified  by  the  heads  of  such  depart- 
ments. They  may  also  be  proved  by  public  documents  printed  by 
order  of  the  Chief  Executive  of  the  Canal  Zone,  or  the  President  of 
the  United  States,  or  by  order  of  Congress,  or  either  House  thereof, 
or  by  the  order  of  the  Isthmian  Canal  Commission,  or  by  the  order  of 


72  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

any  legislative  assembly  which  ma}7  be  provided  for  the  Canal  Zone. 
Acts  of  the  Executive  of  the  territory  now  known  as  the  Republic  of 
Panama  under  Colombian  or  Panamanian  administration  may  be 
proved  by  the  records  thereof  in  the  custody  of  the  United  States 
officials,  or  officials  of  the  said  Governments,  certified  by  the  legal 
keeper  of  the  records.  They  may  also  be  proved  by  public  documents 
printed  by  the  order  of  the  Chief  Executive  of  the  said  Canal  Zone. 
Acts  of  the  Chief  Executive  of  the  Republic  of  Panama  may  be 
proved  by  the  records  of  any  department  of  that  Executive,  certified 
by  the  head  of  the  department  in  which  the  record  is; 

2.  The  proceedings  of  the  United  States  Isthmian  Canal  Commis- 
sion, or  of  an}'  legislative  body  that  may  be  provided  for  the  Canal 
Zone,  or  of  Congress,  by  the  journals  of  those  bodies,  or  of  either 
House  thereof,  or  by  published  statutes  or  resolutions,  or  by  copies 
certified  by  the  clerk  or  secretary,  or  printed  by  their  order.  The 
proceedings  of  the  legislative  branch  of  the  Government  of  Colombia 
or  Panama  prior  to  the  twenty-third  day  of  February,  nineteen  hun- 
dred and  four,  may  be  proved  by  public  documents,  or  statutes  or 
resolutions,  printed  by  the  order  of  the  executive  or  legislative  de- 
partments of  the  said  Governments,  or  commonly  received  in  those 
countries  as  such,  or  by  copy  certified  under  the  seal  of  either  the 
executive  or  the  legislative  branch  of  said  Governments,  or  by  a  recog- 
nition thereof  in  some  public  act  of  the  Executive  of  the  United 
States ; 

3.  The  acts  of  the  executive  or  the  proceedings  of  the  legislature  of 
any  State  or  Territory  of  the  United  States,  in  the  same  manner  as 
provided  in  paragraphs  one  and  two; 

4.  The  acts  of  the  executive  or  the  proceedings  of  the  legislature 
of  a  foreign  country,  by  journals  published  by  their  authority,  or  com- 
monly received  in  that  country  as  such,  or  by  a  copy  certified  under 
the  seal  of  the  country  or  sovereign,  or  by  recognition  thereof  in 
some  public  act  of  the  Executive  of  the  United  States ; 

5.  The  acts  of  a  municipal  corporation  of  the  Canal  Zone,  or  of  a 
board  or  department  thereof,  by  a  copy  certified  by  the  legal  keeper 
thereof,  or  by  a  printed  book  published  by  the  authority  of  such 
corporation ; 

6.  Official  documents  of  any  other  class  in  the  Canal  Zone,  by  the 
original,  or  by  copy  certified  by  the  legal  keeper  thereof; 

7.  Official  documents  of  any  other  class  in  the  United  States,  or  in 
any  State  or  Territory  thereof-  by  the  original,  or  by  a  copy,  certified 
by  the  legal  keeper  thereof,  together  with  the  certificate  of  the  secre- 
tary of  state,  judge  of  the  supreme,  superior,  or  county  court,  or  a 
mayor  of  a  city  of  the  United  States,  or  of  such  State  or  Territory, 
that  the  copy  is  duly  certified  by  the  officer  having  the  legal  custody  of 
the  original ; 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  73 

8.  Official  documents  of  any  other  class  of  a  foreign  country,  by 
the  original,  or  by  a  copy  certified  by  the  legal  keeper  thereof,  with 
a  certificate,  under  the  seal  of  the  country  or  sovereign,  that  the 
document  is  a  valid  and  subsisting  document  of  such  country,  and  that 
the  copy  is  duly  certified  by  the  officer  having  the  legal  custody  of  the 
original ; 

9.  Official  documents  in  departments  of  the  United  States  Gov- 
ernment, by  the  certificate  of  the  legal  custodian  thereof. 

Sec  331.  Proof  of  'public  record  of  private  writing. — An  author- 
ized public  record  of  a  private  writing  may  be  proved  by  the  original 
record,  or  by  a  copy  thereof,  certified  by  the  legal  keeper  of  the  record. 

Sec.  332.  Entries  in  official  book. — Entries  in  public  or  other 
official  books  or  records,  made  in  the  performance  of  his  duty 
by  a  public  officer  of  the  Canal  Zone;  or  by  another  person  in  the 
Zone  in  the  performance  of  a  duty  specially  enjoined  by  law,  are 
prima  facie  evidence  of  the  facts  therein  stated. 

Sec  333.  Proof  of  judgment  of  justice  of  the  peace. — A  transcript 
from  the  record  or  docket  of  a  justice  of  the  peace  within  the  United 
States,  or  any  State  or  Territory  thereof,  or  of  a  district  judge  within 
the  Canal  Zone,  of  a  judgment  rendered  by  him  of  the  proceedings  in 
the  action  before  the  judgment,  of  the  execution  and  return,  if  any, 
subscribed  by  the  justice  or  judge  and  verified  in  the  manner  pre- 
scribed in  the  next  section,  is  admissible  evidence  of  the  facts  stated 
therein. 

Sec  334.  Certificate  attached  to  transcript  of  justice's  record.— 
There  must  be  attached  to  the  transcript  a  certificate  of  the  justice  or 
district  judge  that  the  transcript  is  in  all  respects  correct,  and  that 
he  had  jurisdiction  of  the  action,  and  also  a  further  certificate  of  the 
clerk  of  the  county,  if  within  the  United  States,  or  a  State  or  Terri- 
tory thereof,  under  the  seal  of  the  county,  certifying  that  the  person 
subscribing  the  transcript  was  at  the  date  of  the  judgment  a  justice 
of  the  peace  in  the  said  county,  and  that  the  signature  is  genuine. 
Such  judgment,  proceedings,  and  jurisdiction  may  also  be  proved  by 
the  justice  or  judge  himself,  on  the  production  of  his  docket,  or  by 
a  copy  of  the  judgment  and  his  oral  examination  as  a  witness. 

Sec  335.  What  certificate  of  copy  of  writing  must  state. — When- 
ever a  copy  of  a  writing  is  certified  for  the  purpose  of  evidence,  the 
certificate  must  state,  in  substance,  that  the  copy  is  a  correct  copy 
of  the  original,  or  a  specific  part  thereof,  as  the  case  may  be.  The  cer- 
tificate must  be  under  the  official  seal  of  the  certifying  officer,  if  there 
be  any,  or  if  he  be  the  clerk  of  a  court  having  a  seal,  under  the 
seal  of  such  court. 

Sec  33G.  Historical  works,  books  of  science,  and  maps.— Histor- 
ical works,  books  of  science,  or  art,  published  maps  or  charts,  when 


74  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

made  by  persons  indifferent  between  the  parties,  are  prima  facie 
evidence  of  facts  of  general  notoriety  and  interest. 

Sec.  337.  Secondary  evidence  of  the  contents  of  a  lost  writing. — ■ 
An  original  writing  must  be  produced  and  proved  except  as  other- 
wise provided.  If  it  has  been  lost,  proof  of  the  loss  must  first  be 
made  before  evidence  can  be  given  of  its  contents.  Upon  such  proof 
being  made,  together  with  proof  of  the  due  execution  of  the  writing, 
its  contents  may  be  proved  by  a  copy  or  by  a  recital  of  its  contents 
in  some  authentic  document,  or  by  the  recollection  of  a  witness. 

Sec.  338.  Secondary  evidence  of  writing  in  custody  of  adverse 
party. — If  the  writing  be  in  the  custody  of  the  adverse  party,  he 
must  have  reasonable  notice  to  produce  it.  If  he  then  fail  to  do  so, 
the  contents  of  the  writing  may  be  proved  as  in  the  case  of  its  loss. 
But  the  notice  to  produce  it  is  not  necessary  where  the  writing  is  itself 
a  notice,  or  where  it  has  been  wrongfully  obtained  or  withheld  by 
the  adverse  party. 

Sec.  339.  Party  calling  for  writing  not  hound  to  offer  it  as  evi- 
dence.— Though  a  writing  called  for  by  one  party  is  produced  by  the 
other,  and  is  thereupon  inspected  by  the  party  calling  for  it,  he  is 
not  obliged  to  produce  it  as  evidence  in  the  case. 

Sec.  340.  Proof  of  writing. — Any  writing  may  be  proved,  either; 

1.  By  anyone  who  saw  the  writing  executed;    or 

2.  By  evidence  of  the  genuineness  of  the  handwriting  of  the 
maker;   or 

3.  By  a  subscribing  witness. 

Sec.  341.  Denial  of  execution  by  subscribing  witness. — If  the  sub- 
scribing witness  denies,  or  does  not  recollect  the  execution  of  the 
writing,  its  execution  may  still  be  proved  by  other  evidence. 

Sec.  342.  When  other  evidence  of  the  execution  of  writing  need 
not  be  produced. — Where  a  writing  is  more  than  thirty  years  old, 
and  evidence  is  given  that  the  party  against  whom  the  writing  is 
offered  has  at  any  time  admitted  its  execution,  or  where  the  writing 
is  one  produced  from  the  custody  of  the  adverse  party,  and  has  been 
acted  upon  by  him  as  genuine,  no  other  evidence  of  the  execution  need 
be  given. 

Sec.  343.  Proof  of  handxvriting . — The  handwriting  of  a  person 
may  be  proved  by  anyone  who  believes  it  to  be  his,  and  has  seen  him 
write,  or  has  seen  writing  purporting  to  be  his,  upon  which  he  has 
acted,  or  been  charged,  and  he  has  thus  acquired  knowledge  of  his 
handwriting.  Evidence  respecting  the  handwriting  may  also  be 
given  by  comparison,  made  by  the  court,  with  writings  admitted  ov 
treated  as  genuine  by  the  party  against  whom  the  evidence  is  offered, 
or  proved  to  be  genuine  to  the  satisfaction  of  the  judge.  Where  the 
writing  is  more  than  thirty  years  old,  the  comparisons  may  be  made 
with  writings  purporting  to  be  genuine  and  generally  respected  and 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  75 

acted  upon  as  such  by  persons  having  an  interest  and  knowing  the 
fact. 

Sec.  344.  Writings  of  a  deceased  person. — The  entries  and  other 
writings  of  a  deceased  person,  made  at  or  near  the  time  of  the  trans- 
action, and  in  a  position  to  know  the  facts  stated  therein,  may  be 
read  as  a  prima  facie  evidence  of  the  facts  therein  stated,  in  the 
following  cases : 

1.  When  the  entry  was  made  against  the  interests  of  the  person 
making  it; 

2.  When  it  was  made  in  a  professional  capacity,  and  in  the  ordinary 
course  of  professional  conduct; 

3.  When  it  was  made  in  the  performance  of  a  duty  specially  en- 
joined by  law,  or  in  the  course  of  the  ordinary  and  regular  duties 
of  the  person  making  the  entry. 

Sec.  345.  What  are  original  entries. — When  an  entry  is  repeated 
in  the  regular  course  of  business,  one  being  copied  from  another 
at  or  near  the  time  of  the  transaction,  all  the  entries  are  equally 
regarded  as  originals. 

Sec.  346.  Original  records  not  to  be  removed  from  office. — The 
record  of  a  conveyance  of  real  property,  or  any  other  record,  tran- 
script of  which  is  admissible  in  evidence,  must  not  be  removed  from 
the  office  at  which  it  is  kept,  except  upon  order  of  a  court,  in  cases 
where  the  inspection  of  the  record  is  shown  to  be  essential  to  the 
just  determination  of  the  cause  or  action  or  proceeding  pending,  or 
where  the  court  is  held  in  the  same  building  with  such  office. 

Sec.  347.  Proof  of  real-estate  titles. — Every  instrument  conveying 
or  affecting  real  property  situated  in  the  Canal  Zone  acknowledged 
or  proved  and  certified  as  provided  by  law,  may,  together  with  the 
certificate  of  the  acknowledgment  or  proof,  be  read  in  evidence  in  an 
action  or  proceeding  without  further  proof;  also  the  original  record 
of  such  conveyance  or  instrument  thus  acknowledged  or  proved,  or  a 
certified  copy  of  the  record  of  such  conveyance  or  instrument  thus 
acknowledged  or  proved,  may  be  read  in  evidence  with  the  like  effect 
as  the  original  instrument,  without  further  proof. 

Sec.  348.  View  of  an  object  by  the  court. — Whenever  an  object  has 
such  a  relation  to  the  fact  in  dispute  as  to  afford  reasonable  grounds 
of  belief  respecting  it.  such  object  may  be  exhibited  to  the  court,  or 
its  existence,  situation,  or  character  proved  by  witnesses,  as  the  court 
in  its  discretion  may  determine. 

Sec.  349.  Conclusive  presumption. — The  following  presumptions 
or  deductions,  which  the  law  expressly  directs  to  be  made  from  par- 
ticular facts,  are  deemed  conclusive: 

1.  Whenever  a  party  has,  by  his  own  declaration,  act,  or  omission, 
intentionally  and  deliberately  led  another  to  believe  a  particular 
thing  true,  and  to  act  upon  such  belief,  he  can  not,  in  any  litigation 


76  CODE    OF    OIVIL   PROCEDURE    OF    THE    CANAL.   ZONE. 

arising  out  of  such  declaration,  act,  or  omission,  be  permitted  to 
falsify  it; 

2.  The  tenant  is  not  permitted  to  deny  the  title  of  his  landlord 
at  the  time  of  the  commencement  of  the  relation  of  landlord  and 
tenant  between  them; 

3.  The  issue  of  a  wife  cohabiting  with  her  husband,  who  is  not 
impotent,  is  indisputably  presumed  to  be  legitimate,  if  not  born 
within  the  one  hundred  and  eighty  days  immediately  succeeding  the 
marriage,  or  after  the  expiration  of  three  hundred  days  following 
its  dissolution; 

4.  The  judgment  or  order  of  a  court,  when  declared  by  the  court  to 
be  conclusive. 

Sec.  350.  Disputable  presumptions. — The  following  presumptions 
are  satisfactory,  if  uncontradicted,  but  they  are  disputable,  and  may 
be  contradicted  by  other  evidence : 

1.  That  a  person  is  innocent  of  crime  or  wrong; 

2.  That  an  unlawful  act  was  done  with  an  unlawful  intent; 

3.  That  a  person  intends  the  ordinary  consequence  of  his  voluntary 
act ; 

4.  That  a  person  takes  ordinary  care  of  his  own  concerns; 

5.  That  evidence  willfully  suppressed  would  be  adverse  if  pro- 
duced ; 

6.  That  money  paid  by  one  to  another  was  due  to  the  latter; 

7.  That  a  thing  delivered  by  one  to  another  belonged  to  the  latter ; 

8.  That  an  obligation  delivered  up  to  the  debtor  has  been  paid ; 

9.  That  former  rent  or  installments  had  been  paid  when  a  receipt 
for  the  later  ones  is  produced ; 

10.  That  things  which  a  person  possesses  are  owned  by  him ; 

11.  That  a  person  is  the  owner  of  property  from  exercising  acts 
of  ownership  over  it,  or  from  common  reputation  of  his  ownership; 

12.  That  a  person  in  possession  of  an  order  on  himself  for  pay- 
ment of  money,  or  the  delivery  of  anything,  has  paid  the  money  or 
delivered  the  thing  accordingly ; 

13.  That  a  person  acting  in  a  public  office  was  regularly  appointed 
or  elected  to  it; 

14.  That  official  duty  has  been  regularly  performed; 

15.  That  a  court,  or  judge  acting  as  such,  whether  in  the  Canal 
Zone  or  elsewhere,  was  acting  in  the  lawful  exercise  of  his  juris- 
diction ; 

16.  That  all  the  matters  within  an  issue  in  an  action  were  laid 
before  the  court  and  passed  upon  by  it;  and  in  like  manner  that 
all  matters  within  a  submission  to  arbitration  were  laid  before  the 
arbitrators  and  passed  upon  by  them; 

17.  That  private  transactions  have  been  fair  and  regular; 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  77 

18.  That  the  ordinary  course  of  business  has  been  followed; 

19.  That  a  promissory  note  or  bill  of  exchange  was  given  or 
indorsed  for  a  sufficient  consideration; 

20.  That  an  indorsement  of  a  negotiable  promissory  note  or  bill 
of  exchange  was  made  after  the  time  and  at  the  place  of  making  the 
note  or  bill; 

21.  That  a  writing  is  duly  dated; 

22.  That  a  letter  duly  directed  and  mailed  was  received  in  the 
regular  course  of  the  mail; 

23.  Identity  of  person  from  identity  of  name; 

24.  That  a  person  not  heard  from  in  seven  years  is  dead; 

25.  That  acquiescence  resulted  from  a  belief  that  the  thing 
acquiesced  in  was  conformable  to  the  law  or  fact; 

2G.  That  things  have  happened  according  to  the  ordinary  course  of 
nature  and  the  ordinary  habits  of  life; 

27.  That  persons  acting  as  copartners  have  entered  into  a  contract 
of  copartnership; 

28.  That  a  man  and  woman  deporting  themselves  as  husband  and 
wife  have  entered  into  a  lawful  contract  of  marriage ; 

29.  That  a  child  born  in  lawful  wedlock,  there  being  no  divorce, 
absolute  or  from  bed  and  board,  is  legitimate ; 

30.  That  a  thing  once  proved  to  exist  continues  as  long  as  is  usual 
with  things  of  that  nature ; 

31.  That  the  law  has  been  obeyed ; 

32.  That  a  document  or  writing  more  than  thirty  years  old  is 
genuine,  when  the  same  has  since  been  generally  acted  upon  as 
genuine  by  persons  having  an  interest  in  the  question,  and  its  custody 
lias  been  satisfactorily  explained; 

33.  That  a  printed  or  published  book,  purporting  to  be  printed  or 
published  by  public  authority  was  so  printed  or  published ; 

34.  That  a  printed  or  published  book,  purporting  to  contain  reports 
of  cases  adjudged  in  tribunals  in  the  State  or  country  where  the  book 
is  published,  contains  correct  reports  of  such  cases; 

35.  That  a  trustee  or  other  person  whose  duty  it  was  to  convey  real 
property  to  a  particular  person  has  actually  conveyed  to  him  when 
such  presumption  is  necessary  to  perfect  the  title  of  such  person  or  his 
successor  in  interest ; 

36.  That  there  was  a  good  and  sufficient  consideration  for  a  written 
contract ; 

37.  When  two  persons  perish  in  the  same  calamity,  such  as  wreck, 
battle,  or  conflagration,  and  it  is  not  shown  who  died  first,  and  there 
are  no  particular  circumstances  from  which  it  can  be  inferred,  the 
survivorship  is  presumed  from  the  probabilities  resulting  from  the 
strength  and  age  of  the  sexes,  according  to  the  following  rules: 

803a— 07— m 6* 


78  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

First.  If  both  those  who  have  perished  were  under  the  age  of 
fifteen  years,  the  older  is  presumed  to  have  survived ; 

Second.  If  both  were  above  the  age  of  sixty,  the  younger  is  pre- 
sumed to  have  survived; 

Third.  If  one  be  under  fifteen  and  the  other  above  sixty,  the  former 
is  presumed  to  have  survived ; 

Fourth.  If  both  be  over  fifteen  and  under  sixty,  and  the  sexes  be 
different,  the  male  is  presumed  to  have  survived.  If  the  sexes  be  the 
same,  then  the  older; 

Fifth.  If  one  be  under  fifteen  or  over  sixty,  and  the  other  between 
those  ages,  the  latter  is  presumed  to  have  survived. 

38.  That  a  writing  written  merely  as  a  receipt  or  acknowledgment 
is  true,  but  the  same,  if  produced  in  evidence,  may  be  shown  to  have 
been  given  by  mistake,  or  procured  by  fraud,  or  explained  as  to  its 
legal  effect. 

Sec.  351.  Agreements  invalid  unless  made  in  writing. — In  the  fol- 
lowing cases  an  agreement  hereafter  made  shall  be  unenforceable  by 
action  unless  the  same,  or  some  note  or  memorandum  thereof,  be  in 
writing,  and  subscribed  by  the  party  charged,  or  by  his  agent;  evi- 
dence, therefore,  of  the  agreement  can  not  be  received  without  the 
writing,  or  secondary  evidence  of  its  contents : 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed  within  a 
year  from  the  making  thereof ; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or  miscarriage 
of  another ; 

3.  An  agreement  made  upon  the  consideration  of  marriage,  other 
than  a  mutual  promise  to  marry ; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things  in  action, 
at  a  price  not  less  than  fifty  dollars,  unless  the  buyer  accept  and  re- 
ceive part  of  such  goods  and  chattels,  or  the  evidences,  or  some  of 
them  of  such  things  in  action,  or  pay  at  the  time  some  part  of  the 
purchase  money;  but  when  a  sale  is  made  by  auction  and  entry  is 
made  by  the  auctioneer  in  his  sales  book,  at  the  time  of  the  sale,  of 
the  amount  of  property  sold,  terms  of  sale,  price,  names  of  the  pur- 
chasers, and  person  on  whose  account  the  sale  is  made,  it  is  a  sufficient 
memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than  one  year. 
or  for  the  sale  of  real  property,  or  of  an  interest  therein,  and  such 
agreement,  if  made  by  the  agent  of  the  party  sought  to  be  charged, 
is  invalid  unless  the  authority  of  the  agenl  be  in  writing  and  sub- 
scribed by  the  party  sought  to  be  charged : 

C>.  No  evidence  is  admissible  to  charge  a  person  upon  a  representa- 
tion as  to  the  credit  of  a  third  person,  unless  such  representation,  or 
some  memorandum  thereof,  be  in  writing,  and  either  subscribed  by 
or  in  the  handwriting  of  the  party  to  be  charged. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  79 

Sec.  352.  Alteration  in  writing. — The  party  producing  a  writing 
as  genuine  which  has  been  altered,  and  appears  to  have  been  altered 
after  its  execution,  in  a  part  material  to  the  question  in  dispute, 
must  account  for  the  appearance  of  the  alteration.  He  may  show 
that  the  alteration  was  made  by  another,  without  his  concurrence,  or 
was  made  with  the  consent  of  parties  affected  by  it  or  otherwise 
properly  or  innocently  made,  or  that  the  alteration  did  not  change 
the  meaning  or  language  of  the  instrument.  If  he  do  that  he  may 
give  the  writing  in  evidence,  but  not  otherwise. 

Sec  353.  Leading  questions. — A  question  which  suggests  to  the 
witness  the  answer  which  the  examining  party  desires  is  a  leading 
question.  On  direct  examination,  leading  questions  are  not  allowed, 
except  in  the  sound  discretion  of  the  court  under  special  circum- 
stances making  it  appear  that  the  interest  of  justice  require  it. 

Sec.  354.  V.'itness  may  refer  to  memorandum. — A  witness  may  be 
allowed  to  refresh  his  memory  respecting  a  fact,  by  anything  written 
by  himself  or  under  his  direction  at  the  time  when  the  fact  occurred, 
or  immediately  thereafter,  or  at  any  other  time  when  the  fact  was 
fresh  in  his  memory  and  he  knew  that  the  same  was  correctly  stated 
in  the  writing;  but  in  such  case  the  writing  must  be  produced  and 
may  be  seen  by  the  adverse  party,  who  may,  if  he  choose,  cross- 
examine  the  witness  upon  it,  and  may  read  it  in  evidence. 

So,  also,  a  witness  may  testify  from  such  writing,  though  he  retain 
no  recollection  of  the  particular  facts,  if  he  is  able  to  swear  that  the 
writing  correctly  stated  the  transaction  when  made:  but  such  evi- 
dence must  be  received  with  caution. 

Sec.  355.  Leading  questions  on  cross-examination. — The  opposite 
party  may  cross-examine  a  witness  to  any  facts  stated  in  his  direct 
examination,  or  connected  therewith,  and  in  so  doing  he  may  put 
leading  questions.  But,  if  he  examine  him  as  to  other  matters,  such 
examination  is  to  be  subject  to  the  same  rules  as  a  direct  examination. 

Sec.  356.  Party  may  not  impeach  his  own  witness. — The  party 
producing  a  witness  is  not  allowed  to  impeach  his  credit  by  evidence 
of  a  bad  character,  but  may  contradict  him  by  other  evidence,  and 
in  the  discretion  of  the  court,  in  order  to  show  that  the  witness  has 
misled  him  into  calling  him  to  the  stand,  may  also  show  that  he  has 
made  at  other  times  statements  inconsistent  with  present  testimony, 
and  may,  if  the  court  permit,  cross-examine  said  witness  as  to  such 
conflicting  statements. 

Sec.  357.  Recalling  witness. — After  the  examination  of  a  witness 
by  both  sides  has  been  concluded,  the  witness  can  not  be  recalled  with- 
out leave  of  the  court.  The  court  will  grant  or  withhold  leave  in  its 
discretion,  as  the  interests  of  justice  may  require. 

Sec.  358.  Impeaching  witness. — A  witness  may  be  impeached  by 
the  party  against  whom  he  was  called,  by  contradictory  evidence,  or 


80  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

by  evidence  that  his  general  reputation  for  truth,  honesty,  or  integ- 
rity is  bad;  but  not  by  evidence,  of  particular  wrongful  acts,  except 
that  it  may  be  shown  by  the  examination  of  the  witness,  or  the 
record  of  the  judgment,  that  he  has  been  convicted  of  a  crime. 

Sec.  359.  Impeachment  of  witness  by  inconsistent  statements. — A 
witness  may  also  be  impeached  by  evidence  that  he  has  made  at  other 
times  statements  inconsistent  with  his  present  testimony;  but  before 
this  can  be  done,  the  statement  must  be  related  to  him,  with  the  cir- 
cumstances of  the  times  and  places  and  the  persons  present,  and 
he  must  be  asked  whether  he  made  such  statements,  and,  if  so, 
allowed  to  explain  them.  If  the  statements  be  in  writing  they  must 
be  shown  to  the  witness  before  any  question  is  put  to  him  concerning 
them. 

Sec.  360.  Evidence  of  good  character  of  the  witness. — Evidence  of 
the  good  character  of  the  party  or  witness  is  not  admissible  in  a  civil 
action  until  the  character  of  such  party  or  witness  has  been  im- 
peached, or  unless  the  issue  involved  is  character. 

Sec.  361.  Right  of  opposite  party  to  inspect  writing  shotcn  to  a 
witness. — Whenever  a  writing  is  shown  to  a  witness,  it  may  be  in- 
spected by  the  opposite  party. 

Sec.  362.  Offer  to  compromise. — An  offer  to  compromise  is  not  an 
admission  that  anything  is  due,  and  is  not  admissible  in  evidence. 

Sec.  363.  Unaccepted  offer  in  writing  equivalent  to  tender. — An 
offer  in  writing  to  pay  a  particular  sum  of  money,  or  to  deliver  a 
written  instrument  or  specific  personal  property  is,  if  rejected,  equiv- 
alent to  the  actual  production  and  tender  of  the  money,  instrument, 
or  property. 

Affidavits  and  depositions. 

Sec.  364.  Use  of  affidavit. — An  affidavit  is  a  written  declaration 
under  oath,  made  without  notice  to  the  adverse  party,  and  may  be 
used  to  verify  a  pleading,  or  paper  in  a  special  proceeding,  to  prove 
the  service  of  a  summons,  notice,  or  other  paper,  in  an  action  or 
special  proceeding  to  obtain  a  provisional  remedy,  examination  of 
witnesses,  or  stay  of  proceedings,  or  upon  a  motion,  and  in  any  other 
case  specially  permitted  by  any  other  provision  of  this  Code.  Evi- 
dence of  the  publication  of  a  document,  or  notice  required  by  law,  or 
by  an  order  of  a  court  or  judge,  to  be  published  in  a  newspaper,  may 
be  given  by  the  affidavit  of  the  printer  of  the  newspaper,  or  his  fore- 
man, or  principal  clerk,  annexed  to  a  copy  of  the  document  or  notice 
specifying  the  times  when  and  the  paper  in  which  the  publication 
was  made.  If  such  affidavit  be  made  in  an  action  or  special  proceed- 
ing pending  in  a  court,  it  may  be  filed  with  the  court  or  the  clerk 
thereof.     In  such  case  the  original  affidavit  or  a  copy  thereof,  certi- 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  81 

fied  by  the  judge  of  the  court  or  the  clerk  having  it  in  custody,  is 
prima  facie  evidence  of  the  facts  stated  therein. 

Sec.  365.  Who  may  administer  oath  for  affidavit  to  be  used  in  the 
Zone. — An  affidavit  to  be  used  before  any  court,  judge,  or  officer  of 
the  Canal  Zone,  may  be  taken  before  any  judge  of  any  court,  or  any 
notary  public  in  the  Zone. 

Sec  366.  Who  may  administer  oath  for  affidavit  taken  in  the 
United  States. — An  affidavit  taken  in  the  United  States,  or  in  any 
State  or  Territory  thereof,  to  be  used  in  the  Canal  Zone,  may  be 
taken  before  a  commissioner,  appointed  by  the  Chief  Executive  of 
the  Canal  Zone,  to  take  affidavits  and  depositions  in  the  United 
States,  or  in  such  State  or  Territory,  or  before  any  notary  public  in 
the  United  States,  or  in  such  State  or  Territory,  or  before  any  judge, 
or  clerk  of  a  court  of  record  having  a  seal. 

Sec.  367.  Affidavit  taken  in  a  foreign  country. — An  affidavit  taken 
in  a  foreign  country,  to  be  used  in  the  Canal  Zone,  may  be  taken 
before  an  ambassador,  minister,  consul,  or  vice-consul,  or  consular 
agent  of  the  United  States,  or  before  any  judge  of  a  court  of  record 
having  a  seal,  in  any  foreign  country. 

Sec.  368.  Certification  of  affidavit  taken  in  the  United  States  or  a 
foreign  country. — When  an  affidavit  is  taken  before  a  judge  or  a 
court  in  the  United  States,  or  in  any  State  or  Territory  thereof,  or 
in  a  foreign  country,  the  genuineness  of  the  signature  of  the  judge, 
the  existence  of  the  court,  and  the  fact  that  such  judge  is  a  member 
thereof  must  be  certified  by  the  clerk  of  the  court  under  the  seal 
thereof. 

Depositions. 

Sec.  369.  Depositions  may  be  used. — In  all  cases  other  than  those 
expressly  provided  in  this  Code,  where  a  written  declaration  under 
oath  is  used,  it  must  be  a  deposition,  as  prescribed  by  this  Code. 

Sec.  370.  Testimony  of  a  witness  out  of  the  Zone  may  be  taken  by 
deposition. — -Testimony  of  a  witness  out  of  the  Canal  Zone  may  be 
taken  by  deposition  in  an  action  at  any  time  after  the  service  of  a 
summons  or  the  appearance  of  the  defendant;  and,  in  a  special 
proceeding,  at  any  time  after  a  question  of  fact  has  arisen  therein. 

Sec.  371.  Depositions  of  a  witness  within  the  Canal  Zone. — -The 
testimony  of  a  witness  in  the  Canal  Zone,  may  be  taken  by  deposition, 
in  an  action,  any  time  after  the  service  of  the  summons  or  the 
appearance  of  the  defendant,  and,  in  a  special  proceeding  after  the 
question  of  fact  has  arisen  therein,  in  the  following  cases : 

1.  When  the  witness  is  a  party  to  the  action  or  proceeding,  or  an 
officer,  or  a  member  of  a  corporation  which  is  a  party  to  the  action 
or  proceeding,  or  a  person  for  whose  immediate  benefit  the  action  or 
proceeding  is  prosecuted  or  defended ; 


82  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

2.  When  the  witness  is  about  to  leave  the  Canal  Zone  and  will 
probably  continue  absent  when  the  testimony  is  required ; 

3.  When  the  witness  otherwise  liable  to  attend  the  trial  is  never- 
theless too  ill  or  infirm  to  attend; 

4.  When  the  testimony  is  required  upon  a  motion,  or  in  any  other 
case,  when  the  oral  examination  of  a  witness  is  not  required ; 

5.  When  the  witness  is  the  only  one  who  can  establish  facts  or  a 
fact  material  to  the  issue :  Provided,  The  deposition  of  such  witness 
shall  not  be  used  if  his  presence  can  be  procured  at  the  time  of  the 
trial  of  the  cause. 

Sec.  372.  How  deposition  of  a  witness  out  of  the  Canal  Zone  may 
be  taken. — The  deposition  of  a  witness  out  of  the  Canal  Zone  may  be 
taken  upon  a  commission  issued  from  the  court  in  which  the  action 
or  proceeding  is  pending,  under  the  seal  of  the  court,  upon  an  order 
of  the  court,  or  a  judge  or  justice  thereof,  on  the  application  of  either 
party,  upon  five  days'  previous  notice  to  the  other.  If  the  court  be 
that  of  a  district  judge,  the  commission  shall  have  attached  to 
it  a  certificate  under  seal  by  the  clerk  of  the  Circuit  Court  of  the 
circuit  in  which  the  court  is  held,  to  the  effect  that  the  person  issuing 
the  same  was  an  acting  district  judge  at  the  date  of  the  commis- 
sion. If  issued  to  any  place  within  the  United  States,  or  any  State 
or  Territory  thereof,  it  may  be  directed  to  a  person  agreed  upon  by 
the  parties,  or,  if  they  do  not  agree,  to  any  justice  of  the  peace,  or 
notary  public,  or  to  any  Federal  or  State  judge,  or  to  any  commis- 
sioner authorized  by  the  laws  of  the  United  States  to  administer 
oaths  and  write  depositions.  If  issued  to  any  country  out  of  the 
United  States,  or  the  territories  thereof,  it  may  be  directed  to  a  min- 
ister, ambassador,  consul,  vice-consul,  or  consular  agent  of  the  United 
States  in  such  country,  or  to  any  person  agreed  upon  by  the  parties. 

Sec  373.  Interrogatories  may  be  annexed  to  the  commission. — 
Such  proper  interrogatories,  direct  and  cross,  as  the  respective  parties 
may  prepare,  to  be  settled,  if  the  parties  disagree  as  to  their  form, 
by  the  judge  or  officer  granting  the  order  for  the  commission,  at  a 
day  fixed  in  the  order,  may  be  annexed  to  the  commission ;  or,  when 
the  parties  agree  to  that  mode,  the  examination  may  be  oral  and 
without  written  interrogatories. 

Sec.  374.  Duties  of  official  taking  the  deposition. — The  commission 
must  authorize  the  commissioner  to  administer  an  oath  to  the  wit- 
ness and  to  take  his  deposition  in  answer  to  the  interrogatories,  or, 
when  the  examination  is  to  be  without  interrogatories,  in  answer  to 
oral  questions,  in  respect  to  the  question  in  dispute,  and  to  certify 
the  deposition  to  the  court,  in  a  sealed  envelope  directed  to  the  clerk 
or  other  person  designated  or  agreed  upon,  and  forwarded  to  him  by 
mail  or  other  channel  of  conveyance. 


CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  83 

Sec.  375.  Trial  not  necessarily  delayed  pending  taking  of  deposi- 
tion.— A  trial  or  other  proceeding  must  not  be  postponed  by  reason 
of  a  commission  not  returned,  except  upon  evidence  satisfactory  to 
the  court  that  the  testimony  of  the  witness  is  necessary,  and  that 
proper  diligence  has  been  used  to  obtain  it. 

Sec.  376.  Such  deposition  may  he  used  by  either  party. — The  depo- 
sition mentioned  in  the  four  preceding  sections  may  be  used  by  either 
party  on  the  trial  or  other  proceeding  against  any  other  party  giving 
or  receiving  a  notice,  subject  to  all  just  exceptions. 

Sec.  377.  Taking  depositions  within  the  Canal  Zone. — Either  party 
may  have  the  deposition  taken  of  a  witness  in  the  Canal  Zone  in 
either  of  the  cases  mentioned,  before  any  judge,  or  notary  public, 
on  serving  on  the  adverse  party  previous  notice  of  the  time  and  place 
of  examination,  together  with  a  copy  of  an' affidavit  showing  that 
the  case  is  within  such  section.  Such  notice  must  be  served  at  least 
two  days  before  the  time  is  fixed  for  taking  the  deposition,  and  must 
in  all  cases  give  the  party  reasonable  time  after  notice  to  be  present 
at  the  taking  thereof,  and  without  a  notice  of  such  reasonable  length 
of  time  the  deposition  shall  not  be  admissible  in  evidence  The  court 
shall  determine,  if  the  deposition  is  offered  in  evidence,  whether  a 
reasonable  notice  of  taking  has  been  given. 

Sec.  378.  Manner  of  taking,  certifying,  and  transmitting  deposi- 
tions.— Either  party  may  attend  the  examination  and  put  such  ques- 
tions, direct  and  cross,  as  may  be  proper.  The  deposition,  when  com- 
pleted, must  be  carefully  read  to  the  witness  and  corrected  by  him 
in  any  particular,  if  desired;  it  must  then  be  subscribed  by  the  wit- 
ness, certified  by  the  judge  or  officer  taking  the  deposition,  inclosed 
in  an  envelope  or  wrapper,  sealed,  and  directed  to  the  clerk  of  the 
court  in  which  the  action  is  pending,  or  to  such  person  as  the  parties 
in  writing  may  agree  upon,  and  either  delivered  by  the  judge  or 
officer  to  the  clerk  or  such  person,  or  transmitted  through  the  mail, 
or  by  some  other  private  conveyance,  and  thereupon  such  deposition 
.  may  be  used  by  either  party  upon  the  trial  or  other  proceedings 
against  any  party  giving  or  receiving  a  notice,  subject  to  all 
legal  exceptions,  which  may  be  taken  when  the  deposition  is  read; 
except  that  objections  to  the  form  of  a  question  which  might  be  cor- 
rected if  the  adversary  party's  attention  were  invited  thereto  at  the 
time,  shall  be  deemed  to  have  been  waived  unless  noted  at  the  time 
the  deposition  is  taken.  The  deposition  thus  taken  may  be  also  read 
in  case  of  the  death  of  the  witness;  but  the  deposition  may  be 
excluded  if  the  court  finds  that  the  taking  was  in  any  respect  unfair 
or  fraudulent. 

Sec.  379.  A  stenographer  may  be  employed  in  taking  deposition.— 
The  deposition  shall  be  written  by  the  judge  or  officer  taking  it,  or 


84  CODE    OF    CIVIL   PROCEDURE    OP    THE    CANAL   ZONE. 

by  some  disinterested  person  in  the  presence  and  under  the  direction 
of  the  judge  or  officer.  Such  disinterested  person  may  be  a  stenog- 
rapher and  may  take  the  deposition  in  shorthand,  but  must  forth- 
with reproduce  it  in  longhand,  and  then  it  shall  be  subscribed  by  him 
and  certified,  inclosed  and  forwarded  as  provided. 

Sec.  380.  Deposition  may  be  read  at  any  stage  of  action. — When  a 
deposition  has  been  once  taken,  it  may  be  read  by  either  party  in  any 
stage  of  the  same  action  or  proceeding  where  the  reception  of  evi- 
dence is  proper,  or  in  any  other  action  between  the  same  parties  upon 
the  same  subject-matter,  and  is  then  deemed  the  evidence  of  the 
party  reading  it. 

Sec.  381.  Deposition  to  be  used  outside  of  the  Canal  Zone. — Any 
party  to  an  action  or  special  proceeding  in  a  court,  or  before  a  judge 
of  the  United  States,  or  any  State  or  Territory  thereof,  or  of  any 
foreign  country,  may  obtain  the  testimony  of  a  witness  residing  in 
the  Canal  Zone,  to  be  used  in  such  action  or  proceeding,  in  the  cases 
mentioned  in  the  next  two  sections. 

Sec.  382.  Summoning  witnesses  to  appear  before  commissioner. — 
If  a  commission  to  take  such  testimony  has  been  issued  from  the  court, 
or  a  judge  thereof,  before  which  such  action  or  proceeding  is  pending, 
on  producing  the  commission  to  any  judge  in  the  Canal  Zone,  with 
an  affidavit  satisfactory  to  him  of  the  materiality  of  the  testimony, 
he  may  issue  a  subpoena  to  the  witness,  requiring  him  to  appear  and 
testify  before  the  commissioner  named  in  the  commission,  at  a  speci- 
fied time  and  place. 

Sec.  383.  When  commission  has  not  been  issued. — If  a  commission 
has  not  been  issued,  and  it  is  made  to  appear  to  any  judge  by  an  affi- 
davit satisfactory  to  him : 

1.  That  the  testimony  of  the  witness  is  material  to  either  party; 

2.  That  a  commission  to  take  the  testimony  of  such  witness  has  not 
been  issued ; 

3.  That  according  to  the  law  of  the  State  or  country  where  the 
action  or  special  proceeding  is  pending,  the  deposition  of  a  witness 
taken  under  such  circumstances  and  before  such  judge  or  justice,  will 
be  received  in  the  action  or  proceeding ;  he  must  issue  his  subpcena  re- 
quiring the  witness  to  appear  and  testify  before  him,  at  a  specified 
time  and  place. 

Sec.  384.  Taking  flic  deposition. — Upon  the  appearance  of  the  wit- 
ness, the  judge  or  justice  of  the  peace,  or  commissioner,  as  the  case 
may  be,  must  cause  his  testimony  to  be  taken  in  writing,  and  must  cer- 
tify and  transmit  the  same  to  the  court  or  judge  before  whom  the 
action  or  proceeding  is  pending,  in  such  manner  as  the  law  of  that 
State  or  country  requires. 

Sec.  385.  Oath  of  witness  giving  deposition. — Every  witness  giving 
a  deposition  shall  take  an  oath  that  the  deposition  by  him  subscribed 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL,    ZONE.  85 

contains  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and 
the  authority  taking  the  deposition  shall  certify  that  such  oath  has 
been  administered. 

Sec.  386.  Perpetuation  of  testimony. — The  testimony  of  any  wit- 
ness may  be  taken  for  perpetual  preservation,  when  the  party  desir- 
ing to  take  it  shall  present  to  any  judge  of  the  Supreme  Court,  or 
Circuit  Court,  a  petition  verified  by  oath  of  the  applicant,  stating: 

1.  That  the  applicant  expects  to  be  a  party  to  an  action  in  a  court 
in  the  Canal  Zone,  and  giving  the  names  of  the  persons  who  he  ex- 
pects will  be  adverse  parties ;  or 

2.  That  the  proof  of  some  fact  is  necessary  to  perfect  the  title  of 
property  in  which  he  is  interested,  or  to  establish  marriage,  descent, 
heirship,  or  any  other  matter  which  may  hereafter  become  material 
to  establish,  though  no  action  may  at  the  time  be  anticipated,  or,  if 
anticipated,  the  names  of  the  parties  thereto  may  not  be  known ;  and 

3.  The  name  of  the  witness  to  be  examined,  his  place  of  residence, 
and  a  general  statement  of  facts  expected  to  be  proved. 

Sec  387.  Order  of  judge  for  perpetuation  of  testimony. — The 
judge  to  whom  such  petition  is  presented  shall  make  an  order  allowing 
the  examination,  before  himself,  and  prescribing  the  time  and  place 
for  taking  the  testimony,  and  the  notice  to  be  given,  which  notice, 
if  the  parties  expectant  are  known  to  reside  within  the  Canal  Zone, 
must  be  personally  served,  or,  if  unknown,  must  be  served  on  the 
clerk  of  the  Circuit  Court  where  the  property  to  be  affected  by  such 
evidence  is  situated,  and  by  publication  thereof  in  some  newspaper 
of  general  circulation  on  the  Isthmus  where  the  property  is  situated, 
to  be  designated  by  the  judge,  for  three  successive  weeks  prior  to  the 
time  of  taking  the  testimony. 

Sec  388.  Taking  the  testimony. — At  the  time  and  place  designated 
in  the  notice  provided  in  the  last  preceding  section  the  judge  shall 
require  proof  that  the  order  of  notice  has  been  complied  with,  and 
certify  that  fact,  and  shall  thereupon  proceed  to  take  the  deposition 
named  in  the  order  of  the  judge;  or,  if  more  than  one  witness  is  thus 
named,  such  of  them  as  appear  before  him  at  the  time  designated, 
but  the  taking  of  the  same  may  be  continued  from  time  to  time. 

Sec  389.  Manner  of  conducting  examination. — The  examination 
must  be  by  question  and  answer.  The  deposition  when  completed, 
must  be  carefully  read  to  and  subscribed  by  the  witness,  and  certified 
by  the  judge  taking  the  same,  who  shall  also  certify  that  the  witness 
was  duly  sworn,  and  the  deposition  shall  then,  together  with  the  peti- 
tion and  order  of  the  judge  for  taking  the  testimony,  be  sealed  up 
and  delivered  or  transmitted  to  the  clerk  of  the  Circuit  Court  of  the 
circuit  in  which  the  applicant  resides.  The  clerk  shall  indorse  on  the 
deposition  the  date  when  the  same  with  its  accompanying  papers  was 


86  CODE    OF    CIVIL.  PROCEDURE    OF    THE    CANAL    ZONE. 

filed  in  his  office,  and  shall  securely  retain  the  same,  for  the  use  here- 
inafter provided. 

Any  party  having  a  legal  interest  in  the  subject-matter  of  the 
deposition  shall  be  entitled  to  receive  from  the  clerk  of  the  court  hav- 
ing the  lawful  custody  thereof  a  certified  copy  of  the  deposition,  upon 
payment  of  lawful  fees  for  making  and  certifying  such  copy. 

Sec.  390.  Payers  filed  'prima  facie  evidence  of  regularity. — The 
petition  and  order,  and  certificate  of  service,  and  papers  filed  by  the 
judge  as  provided  in  the  last  preceding  section,  are  prima  facie  evi- 
dence of  the  facts  stated  therein,  to  show  compliance  with  the  pro- 
visions of  the  four  preceding  sections. 

Sec  391.  Use  of  such  deposition. — If  a  trial  be  had  between  the 
parties  named  in  the  petition  as  parties  expectant,  or  their  successors 
in  interest,  or  between  any  parties  wherein  it  may  be  material  to 
establish  the  facts  which  such  deposition  proves  or  tends  to  prove 
and  whose  interest  was  unknown  to  the  party  taking  the  deposition 
at  the  time  of  taking,  upon  proof  that  the  witnesses  whose  deposi- 
tions have  thus  been  taken  are  dead  or  insane,  or  can  not  be  found,  or 
are  unable,  by  reason  of  age  or  other  infirmity,  to  give  their  testi- 
mony in  court,  the  depositions,  or  certified  copies  thereof,  may  be  used 
by  either  party,  subject  to  all  legal  objections. 

Sec.  392.  Effect  of  testimony  so  taken. — The  deposition  so  taken 
and  read  in  evidence  shall  have  the  same  effect  as  the  oral  testimony 
of  the  witness.  Any  objection  which  would  be  proper  to  take  if  the 
witness  were  testifying  orally  may  be  taken  to  the  witness  or  to  any 
part  of  his  deposition  when  the  same  is  read  upon  the  trial. 

Chapter  XIII. 

VENUE   OF   ACTIONS. 

Sec  393.  Venue  of  actions. — Actions  to  confirm  titles  to  real  estate. 
or  to  secure  a  partition  of  real  estate,  or  to  cancel  clouds,  or  remove 
doubts  from  the  titles  of  real  estate,  or  to  obtain  possession  of  real 
estate,  or  to  recover  damages  for  injuries  to  real  estate,  or  to  estab- 
lish any  interest,  right,  or  title  in  or  to  real  estate,  or  actions  for  the 
condemnation  of  real  estate  for  public  use,  shall  be  brought  in  the 
judicial  circuit  where  the  land,  or  some  part  thereof,  is  situated; 
actions  against  executors,  administrators,  and  guardians  touching 
the  performance  of  their  official  duties,  and  actions  for  account  and 
settlement  by  them,  and  actions  for  the  distribution  of  the  estates 
of  deceased  persons  among  the  heirs  and  distributees,  and  actions  for 
the  payment  of  legacies,  shall  be  brought  in  the  circuit  in  which 'the 
will  was  admitted  to  probate,  or  letters  of  administration  were 
granted,  or  the  guardian  was  appointed.    And  all  actions  not  herein 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  87 

otherwise  provided  for  may  be  brought  in  any  circuit  where  the 
defendant  or  necessary  party  defendant  may  reside  or  be  found,  or  in 
any  circuit  where  the  plaintiff  or  one  of  the  plaintiffs  resides,  at  the 
election  of  the  plaintiff,  except  in  cases  where  other  special  provision 
is  made  in  this  Code.  In  case  neither  the  plaintiff  nor  the  defendant 
resides  within  the  Canal  Zone  and  the  action  is  brought  to  seize  or 
obtain  title  to  property  of  the  defendant  within  the  Canal  Zone, 
the  action  shall  be  brought  in  the  circuit  where  the  property  which 
the  plaintiff  seeks  to  seize  or  to  obtain  title  to  is  situated  or  is  found : 
Provided,  That  in  an  action  for  the  foreclosure  of  a  mortgage  upon 
real  estate,  when  the  service  upon  the  defendant  is  not  personal,  but 
is  by  publication,  in  accordance  with  law,  the  action  must  be  brought 
in  the  circuit  where  the  land  lies.  And  in  all  cases  process  may  issue 
from  the  court  in  which  an  action  or  special  proceeding  is  pending, 
to  be  in  force  in  any  circuit  to  bring  in  defendants  and  to  enforce  all 
orders  and  decrees  of  the  court.  The  failure  of  the  defendant  to 
object  to  the  venue  of  the  action  at  the  time  of  entering  his  appear- 
ance in  the  action  shall  be  deemed  a  waiver  on  his  part  of  all  objec- 
tion to  the  place  or  tribunal  in  which  the  action  is  brought,  except 
in  the  actions  referred  to  in  this  section  relating  to  real  estate,  and 
actions  against  executors,  administrators,  and  guardians,  and  for 
the  distribution  of  estates  and  payment  of  legacies. 

Chapter  XIV. 

PROCEEDINGS    WHEN    JUDGE    IS    DISQUALIFIED    OR    DISABLED. 

Sec  394.  Proceeding  when  judge  disqualified. — Whenever  a  judge 
in  a  Circuit  Court  is  disqualified,  under  the  provisions  of  the  Code, 
to  sit  in  any  action,  the  judge  shall  immediately  notify  the  Chief 
Justice  of  the  Supreme  Court  of  his  disqualification,  and  thereupon 
the  judges  of  the  Supreme  Court  shall  designate  some  other  judge  of 
a  Circuit  Court,  to  hold  such  a  term  of  court,  or  such  part  thereof  as 
may  be  necessary  where  such  action  may  be  pending,  and  to  preside 
at  the  trial  thereof,  and  the  judge  so  designated  shall  in  all  respects 
have  the  same  power  in  the  action  as  though  he  had  been  the  regular 
judge  whose  duty  it  was  to  preside  in  the  court.  But  if  the  judges  of 
the  Supreme  Court  shall  certify  to  the  Chief  Executive  that  it  is 
inconvenient  to  assign  any  other  judge  to  hold  a  term,  or  to  try  the 
action,  the  Chief  Executive  shall  thereupon  commission  some  person 
learned  in  the  law  to  attend  and  hold  said  court,  with  the  same  power 
as  though  he  had  been  the  regular  judge  thereof.  Any  special  judge 
ordered  under  the  provisions  of  this  section,  shall  receive  a  compensa- 
tion of  fifteen  dollars,  United  States  money,  per  day.  and  necessary 
expenses  for  the  time  actually  employed  in  the  trial. 


88  CODE    OF    CIVIL    PKOCEDURE    OF    THE    CANAL    ZONE. 

Sec.  395.  Proceeding  where  judge  is  physically  disabled. — When  a 
judge  of  a  Circuit  Court  is  unable,  from  sickness  or  other  physical 
disability,  to  attend  and  hold  any  court,  at  the  time  and  place  re- 
quired by  law,  temporary  provision  for  a  judge  to  hold  the  term  of 
court  shall  be  made,  as  provided  in  the  preceding  section. 

Chapter  XV. 

WITNESSES. 

Sec.  396.  Witnesses. — The  testimony  of  all  witnesses,  except  such 
as  has  been  taken  in  writing  in  the  form  of  depositions  as  provided 
by  law,  shall  be  given  on  oath  in  open  court  orally,  and  each  wit- 
ness may  be  orally  cross-examined  by  the  adverse  party  or  his 
counsel  with  sufficient  fullness  and  freedom  to  test  his  accuracy 
and  truthfulness  and  freedom  from  interest  or  bias,  or  the  reverse, 
and  to  elicit  all  important  facts  bearing  upon  the  issue.  The  court 
shall  be  liberal  in  allowing  cross-examination,  but  shall  have  the 
power  to  restrict  it  so  as  to  confine  it  to  the  purposes  last  above 
specified  and  to  prevent  irrelevant  or  insulting  interrogatories. 

Sec.  397.  Qualification  of  witness. — All  persons,  without  exception, 
otherwise  than  as  specified  in  the  next  section,  who,  having  organs 
of  sense,  can  perceive,  and,  perceiving,  make  known  their  perceptions 
to  others,  may  be  witnesses.  Neither  the  parties  nor  other  persons, 
who  have  an  interest  in  the  event  of  an  action  or  proceeding  shall  be 
excluded ;  nor  shall  those  who  have  been  convicted  of  crime ;  nor  shall 
any  person  be  excluded  on  account  of  his  opinion  on  matters  of  re- 
ligious belief.  But  in  every  case  the  credibility  of  the  witness  may  be 
drawn  in  question  by  competent  evidence,  and  the  court  in  weighing 
the  testimony  of  any  witness  shall  make  due  allowance  for  the  interest 
or  credibility  of  the  witness,  as  the  facts  disclosed  may  require. 

Sec.  398.  Incompetency  of  witnesses.- — The  following  persons  can 
not  be  witnesses : 

1.  Those  who  are  of  unsound  mind  at  the  time  of  their  production 
for  examination,  to  such  degree  as  to  be  incapable  of  perceiving  and 
making  known  their  perceptions  to  others; 

2.  Children  who  appear  to  the  court  to  be  of  such  tender  age  and 
inferior  capacity  as  to  be  incapable  of  receiving  the  just  impressions 
of  the  facts  respecting  which  they  are  examined,  or  of  relating  them 
truly; 

3.  A  husband  cannot  be  examined  for  or  against  his  wife  without 
her  consent;  nor  a  wife  for  or  against  her  husband  without  his  con- 
sent; nor  can  either,  during  the  marriage  or  afterwards,  be,  without 
the  consent  of  the  other,  examined  as  to  any  communication  made  by 
one  to  the  other  during  the  marriage;  but  this  exception  does  not 


CODE    OP    CIVIL    PROCEDURE    OP    THE    CANAL    ZONE.  89 

apply  to  a  civil  action  or  proceeding  by  one  against  the  other,  or  to  a 
criminal  action  or  proceeding  for  a  crime  committed  by  one  against 
the  other ; 

4.  An  attorney  cannot,  without  the  consent  of  his  client,  be  ex- 
amined as  to  any  communication  made  by  the  client  to  him,  or  his 
advice  given  thereon  in  the  course  of  professional  employment;  nor 
can  an  attorney's  secretary,  stenographer,  or  clerk  be  examined, 
without  the  consent  of  client  concerning  any  fact,  the  knowledge  of 
which  has  been  acquired  in  such  capacity; 

5.  A  clergyman  or  priest  cannot,  without  the  consent  of  the  person 
making  the  confession,  be  examined  as  to  any  confession  made  to  him 
in  his  professional  character  in  the  course  of  discipline  enjoined  by 
the  church  to  which  he  belongs ; 

6.  A  public  officer  cannot  be  examined  during  his  term  of  office  or 
afterwards  as  to  communications  made  to  him  in  official  confidence, 
when  the  court  finds  that  the  public  interests  would  suffer  by  the  dis- 
closure ; 

7.  Parties  or  assignors  of  parties  to  an  action  or  proceeding,  or  per- 
sons in  whose  behalf  an  action  or  proceeding  is  prosecuted,  against  an 
executor  or  administrator  or  other  representative  of  a  deceased  per- 
son, or  against  a  person  of  unsound  mind,  upon  a  claim  or  demand 
against  the  estate  of  such  deceased  person  or  against  such  person  of 
unsound  mind,  cannot  testify  as  to  personal  transactions  with  such 
deceased  person,  or  person  of  unsound  mind,  unless  the  personal 
representative  of  such  person  shall  have  first  introduced  proof  as  to 
such  transactions. 

Chapter  XV T. 

DUTIES    OF    THE    CLERK    OF    THE    CIRCUIT    COURT. 

Sec.  399.  General  duties  of  the  clerk. — The  clerk  shall  be  the  re- 
cording officer  of  all  the  proceedings  of  the  court.  He  or  his  deputy 
may,  at  any  time,  receive  and  file  all  complaints,  answers,  motions,  re- 
ports, injunctions,  orders,  judgments,  decrees,  or  other  papers  affecting 
an  action  or  special  proceeding  offered  for  that  purpose;  and  shall 
indorse  upon  all  such  papers  the  time  when  and  the  party  by  whom 
they  were  respectively  filed,  and  may  issue  under  the  seal  of  the  court, 
all  process  authorized  by  law  to  be  issued  by  him  and  proper  in  any 
action  or  proceeding  pending  in  the  court  of  which  he  is  clerk.  He 
may  administer  oaths  in  all  cases  where  oaths  are  proper  to  be  ad- 
ministered. He  shall  preserve  and  keep  all  records,  files,  papers,  and 
books  belonging  to  his  office.  He  shall  in  person  or  by  deputy  attend 
all  sessions  of  the  court,  and  keep  minute  books,  in  which  he  shall 
record,  under  the  direction  of  the  judge,  all  the  proceedings  of  the 


90  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

court.  He  may  issue  certified  copies  of  all  papers  and  records  within 
his  office,  under  the  seal  of  the  court.  His  acts  shall  at  all  times  be 
under  the  direction  of  the  judge. 

He  shall  also  act  as  exofficio  registrar  of  land  titles  until  relieved 
by  law,  and  shall  keep  proper  books  of  record  which  shall  at  all  rea- 
sonable hours  be  open  to  the  public. 

Sec.  400.  The  docket. — The  minute  book  prescribed  in  the  preced- 
ing section  shall  be  called  a  docket,  and  each  page  thereof  shall  be 
properly  prepared  for  receiving  all  the  entries  appertaining  to  a 
single  action.  It  shall  contain  the  names  of  the  plaintiff  and  de- 
fendant, the  date  when  the  complaint,  answer,  demurrer,  bill  of 
exceptions,  execution,  and  all  motions,  and  all  other  papers  in  the 
action  have  been  filed  or  issued,  and  a  brief  statement  of  all  orders, 
judgments,  and  other  proceedings  therein,  so  that  by  a  reference  to 
a  single  page  the  whole  history  of  the  action  may  be  briefly  outlined. 
The  docket  shall  be  duly  indexed,  both  direct  and  indirect,  in  the 
alphabetical  order  of  the  names  of  the  parties,  and  of  each  of  them, 
so  that  the  page  of  the  docket  containing  the  entries  in  each  case 
may  be  readily  found. 

Sec.  401.  New  dockets. — A  new  docket  shall  be  prepared  by  the 
clerk  when  ordered  by  the  court,  omitting  therefrom  all  actions 
standing  upon  the  old  docket  and  which  have  been  finally  disposed 
of  before  the  preparation  of  the  new  docket.  Upon  the  new  docket, 
actions  shall  be  entered  in  the  same  order  in  which  they  stood  upon 
the  last  former  docket  and  upon  the  page  devoted  to  each  action 
shall  be  copied  all  the  entries  pertaining  to  that  action  contained 
in  the  former  docket.  The  new  docket  shall  be  indexed  as  provided 
in  the  preceding  section. 

Sec  402.  Books  of  final  record. — Immediately  after  the  final  termi- 
nation of  an  action  in  which  no  further  proceedings,  appellate 
or  otherwise,  can  be  had  except  the  enforcement  of  the  judgment, 
the  clerk  shall  record  the  final  judgment,  in  a  book  to  be  kept  for 
that  purpose,  and  styled  "  The  Judgment  Docket,"  but  he  shall  not 
record  the  evidence  which  has  been  taken  in  the  action,  nor  any  part 
of  the  arguments  of  counsel;  nor  shall  he  record  the  pleadings  or 
other  proceedings  in  the  action,  except  so  far  as  it  may  be  necessary 
to  show  the  important  steps  taken  in  the  litigation,  unless  specially 
ordered  by  the  court  to  do  so. 

Sec.  403.  Custody  of  moneys  paid  into  court. — Whenever  moneys 
are  paid  into  or  deposited  in  court,  the  same  shall  be  delivered  to 
the  clerk  in  person,  or  to  such  of  his  deputies  as  shall  be  specially 
authorized  by  his  appointment  in  writing  to  receive  the  same.  He 
must  keep  the  same  subject  to  the  order  of  the  court  and  shall  keep 
each  fund  distinct,  and  open  an  account  with  each. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  91 

Chapter  XVII. 

PROCESS. 

Preliminary  process. 

Sec.  401.  Commencement  of  actions. — Civil  actions  must  be  com- 
menced by  filing  a  complaint  with  the  clerk  of  the  court  in  which  the 
action  is  to  be  instituted.  The  date  of  the  filing  of  the  complaint 
upon  which  process  is  issued  and  duty  served  sriall  be  deemed  to  be 
the  true  time  of  the  commencement  of  the  action. 

Sec.  405.  Proceedings  of  clerk  on -filing  complaint.- — -The  clerk  must 
endorse  on  the  complaint  the  day,  month,  and  year  that  it  is  filed; 
and  shall  forthwith  issue  one  summons  or  more  for  calling  the  de- 
fendants into  court. 

Sec.  406.  Defendants  residing  in  different  circuits. — If  the  de- 
fendants reside  in  different  circuits,  one  summons  shall  issue  for  all 
the  defendants  living  in  one  circuit  and  another  for  all  the  defendants 
living  in  another  circuit,  and  in  the  same  way  until  a  summons  has 
been  issued  for  all  of  the  defendants. 

Sec.  407.  The  summons. — The  summons  must  be  directed  to  the 
defendant,  signed  by  the  clerk  and  issued  under  the  seal  of  the  court, 
and  must  contain : 

1.  The  names  of  the  parties  to  the  action,  the  court  in  which  it  is 
brought,  and  the  circuit  in  which  the  complaint  is  filed; 

2.  The  direction  that  the  defendant  appear  within  ten  days,  if  the 
summons  is  served  within  the  Canal  Zone;  within  forty  days,  if 
served  elsewhere;  and  answer  the  complaint  within  the  time  fixed 
by  the  rules  of  court ; 

3.  A  notice  that  unless  the  defendant  so  appears  and  answers, 
plaintiff  will  take  judgment  by  default  and  demand  from  the  court 
the  relief  applied  for  in  the  complaint ; 

4.  A  copy  of  the  complaint. 

Sec.  408.  Summons  lost  or  not  served. — If  a  summons  is  returned 
without  being  served  upon  any  or  all  of  the  defendants  or  if  it  has 
been  lost,  the  clerk,  upon  demand  of  the  plaintiff,  may  issue  other 
summons,  as  occasion  may  require,  in  the  same  form  as  the  original. 

Sec.  409.  Service  of  summons. — -The  summons  may  be  served  by  the 
marshal  of  the  Supreme  Court  or  the  marshal  of  the  circuit  where  the 
defendant  is  found,  or  in  which  service  is  made,  or  by  his  authorized 
deputy  or  by  the  complainant,  his  agent  or  attorney.  A  copy  of  the 
summons  and  complaint  must  be  served  upon  each  of  the  defendants. 
When  service  of  the  summons  has  been  completed  it  must  be  returned 
with  a  certificate  of  its  service  to  the  office  of  the  clerk  from  which  it 
is  issued.  The  certificate  of  service  must  state  in  full  the  time,  place, 
and  manner  of  making  service. 


92  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  410.  Service  by  indifferent  person. — When  neither  the  mar- 
shal of  the  Supreme  Court  nor  the  marshal  of  the  circuit  nor  his 
deputy  is  conveniently  available  for  the  service  of  a  summons,  the 
judge  or  clerk  of  the  court  may.  by  writing  indorsed  upon  the  sum- 
mons, appoint  some  disinterested  person  to  serve  the  summons.  When 
the  service  has  been  completed  by  such  disinterested  person,  it  shall  be 
returned  to  the  office  of  the  clerk  from  which  it  issued,  with  a  certifi- 
cate of  the  time,  place,  and  manner  of  its  service,  signed  by  the  party 
making  the  service,  together  with  an  affidavit  of  such  person  that  the 
facts  stated  in  his  certificate  are  true. 

Sec  411.  Manner  of  serving  summons. — The  summons  must  be 
served  by  delivering  a  copy  thereof,  as  follows: 

1.  If  the  suit  is  against  a  corporation  formed  under  the  laws  of  the 
Canal  Zone,  to  the  President  or  other  head  of  the  corporation,  secre- 
tary, cashier,  or  managing  agent  thereof ; 

2.  If  the  suit  is  against  a  foreign  corporation,  or  a  non-resident 
joint  stock  company,  or  association  doing  business  in  and  having  a 
managing  or  business  agent,  cashier,  or  secretary  within  the  Canal 
Zone,  to  such  agent,  cashier,  or  secreta^ ;  or  to  any  agent  authorized 
by  the  corporation,  joint  stock  company,  or  association  to  accept  serv- 
ice for  it  or  them ; 

3.  If  against  a  minor  under  the  age  of  thirteen  years  residing 
within  the  Canal  Zone,  to  such  minor,  personally,  and  also  to  his 
father,  mother,  or  guardian;  or,  if  there  be  none  within  the  Zone, 
then  to  any  person  having  the  care  or  control  of  such  minor,  or  with 
whom  he  resides,  or  in  whose  service  he  is  emplo}Ted; 

4.  If  against  a  person  residing  within  the  Zone  who  has  been  judi- 
cially declared  of  unsound  mind,  or  incapable  of  conducting  his  own 
affairs,  and  for  whom  a  guardian  has  been  appointed,  to  such  person 
and  also  to  his  guardian ; 

5.  If  against  a  city  or  municipality,  to  the  mayor  or  president, 
or  other  head  of  the  legislative  department  thereof,  or  to  the  clerk 
or  secretary  thereof; 

6.  In  all  other  cases,  to  the  defendant  personally,  or  by  leaving 
a  copy  at  his  usual  place  of  residence,  in  the  hands  of  some  person 
resident  therein  of  sufficient  discretion  to  receive  the  same.  But 
service  upon  a  corporation,  as  provided,  may  be  made  by  leaving 
the  copy  at  the  office  of  the  proper  officer  thereof  if  such  officer  cannot 
be  found. 

Sec  412.  What  equivalent  to  service. — An  acknowledgment  on 
the  back  of  a  summons  by  the  defendant  or  his  voluntary  appearance 
in  the  action  shall  be  equivalent  to  service. 

Sec  413.  Service  upon  absent  or  unknown  defendants. — AVhere  the 
person  on  whom  service  is  to  be  made  resides  out  of  the  Canal  Zone, 
or  has  departed  therefrom,  or  cannot,  after  due  diligence,  be  found 


CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL.   ZONE.  93 

withm  the  Zone,  or  conceals  himself  to  avoid  the  service  of  summons, 
or  is  a  foreign  corporation  having  no  managing  or  business  agent, 
cashier,  or  secretary  within  the  Zone,  and  the  fact  appears  by  affi- 
davit to  the  satisfaction  of  the  judge  of  the  court  where  the  action 
is  pending,  and  it  also  appears  by  such  affidavit  that  a  cause  of 
action  exists  against  the  defendant  in  respect  to  whom  the  service  is 
to  be  made,  or  that  he  is  a  necessary  or  proper  party  to  the  action; 
and  when  it  appears  by  such  affidavit,  or  by  the  complaint  on  file 
that  it  is  an  action  which  relates  to.  or  the  subject  of  which  is,  real 
or  personal  property  w7ithin  the  Zone,  in  which  such  person  defend- 
ant or  foreign  corporation  defendant,  has  or  claims  a  lien  or  interest, 
actual  or  contingent,  or  in  which  the  relief  demanded  consists  wholly 
or  in  part  in  excluding  such  person  or  foreign  corporation  from  any 
interest  therein,  such  judge  may  make  an  order  that  the  service  may 
be  made  b}^  publication  of  the  order  which  shall  fix  the  date  on 
whieh  the  defendant  is  required  to  appear. 

Sec.  414.  Order  for  service  by  publication. — The  order  must  direct 
the  publication  to  be  made  in  such  newspaper  or  newspapers,  to  be 
designated  by  the  judge,  as  is.  or  are  most  likely  to  give  notice  to  the 
person  to  be  served,  and  for  such  length  of  time  as  may  be  deemed 
reasonable,  at  least  once  a  week  for  three  consecutive  weeks:  but  the 
last  publication  against  a  defendant  residing  out  of  the  Zone,  or 
absent  therefrom,  must  not  be  less  than  forty  days  before  the  day 
on  which  the  defendant  is  required  to  appear.  In  case  of  publica- 
tion, where  the  residence  of  a  non-resident  or  absent  defendant  is 
known,  the  judge  must  direct  a  copy  of  the  summons  and  complaint 
to  be  forthwith  deposited  by  the  clerk  in  the  postoffice,  postage  pre- 
paid, directed  to  the  person  to  be  served,  at  his  place  of  residence. 
If  the  residence  of  the  defendant  is  unknown  then  to  his  last  known 
place  of  residence  with  the  request  to  forward  if  not  called  for  in 
five  days.  When  publication  is  ordered,  personal  service  of  a  copy 
of  the  summons  and  complaint  outside  of  the  Zone  is  equivalent  to 
publication  and  deposit  in  the  postoffice  and  in  either  case  the  service 
of  the  summons  is  complete  at  the  expiration  of  the  time  prescribed 
by  the  order  of  publication.  Said  order  of  publication  shall  be 
made  as  brief  as  a  proper  notice  will  permit. 

Sec.  415.  Proof  of  the  service. — Proof  of  the  service  of  summons 
and  complaint  must  be  made,  as  follows : 

1.  If  served  by  a  marshal  or  deputy,  by  his  certificate  thereof  on 
the  summons; 

2.  If  by  any  other  person,  by  his  affidavit  thereof;   or 

'■\.  In  case  of  publication,  by  the  affidavit  of  the  printer  or  his 
foreman,  or  principal  clerk,  to  which  affidavit  a  copy  of  the  publi- 
cation shall  be  attached;    and  an  affidavit  showing  the  deposit  of  a 
803a— 07— m 7* 


94  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

copy  of  the  summons,  in  the  postoffice,  that  the  same  has  been  depos- 
ited ;    or 

4.  The  written  admission  of  the  defendant.  The  certificate  or 
affidavit  must  state  the  time  and  place  of  service. 

Sec.  416.  Service  in  actions  affecting  the  title  to  land. — In  an 
action  affecting-  the  title  or  right  of  possession  of  real  property, 
the  plaintiff,  at  the  time  of  filing  the  complaint,  and  the  defendant, 
at  the  time  of  filing  his  answer,  when  affirmative  relief  is  claimed 
in  such  answer,  or  at  any  time  afterwards,  may  record  in  the  office 
of  the  registrar  of  land  titles  in  the  circuit  in  which  the  property 
is  situated  a  notice  of  the  pendency  of  the  action,  containing  the  real 
names  of  the  parties  and  the  object  of  the  action,  and  a  description 
of  the  property  in  that  circuit  affected  thereby.  From  the  time 
only  of  filing  such  notice  for  record  shall  a  purchaser,  or  incum- 
brancer of  the  property  affected  thereby,  be  deemed  to  have  con- 
structive notice  of  the  pendency  of  the  action. 

Chapter  XVIII. 

SUBPCENAS,    AND    COMPELLING    ATTENDANCE    OF    WITNESSES. 

Sec  417.  Subpcenu  or  process  to  procure  the  attendance  of  wit- 
ness.— The  process  by  which  the  attendance  of  a  witness  is  required 
is  called  a  subpoena.  It  is  a  writ  directed  to  a  person  and  requiring 
his  attendance  at  a  particular  time  and  place  to  testify  as  a  witness. 
It  may  also  require  him  to  bring  with  him  any  books,  documents  or 
other  things  under  his  control,  which  he  is  bound  by  law  to  produce 
in  evidence,  in  which  case  it  is  called  a  subpoena  duces  tecum. 

Sec  418.  Issuing  of  the  subpcena. — The  subpoena  shall  be  issued  as 
follows : 

1.  To  require  the  attendance  before  a  court  or  at  the  trial  of  an 
issue  therein,  it  shall  be  issued  and  shall  be  signed  by  the  judge  or 
clerk  of  the  court  before  which  the  attendance  is  required  and  in 
which  the  issue  is  pending. 

2.  To  require  attendance  out  of  the  court  before  a  judge,  justice, 
or  other  officer  authorized  to  administer  oaths,  or  to  take  testimony 
in  any  manner  under  the  laws  of  the  Canal  Zone,  it  shall  be  issued 
by  the  judge,  justice  or  other  officer  before  whom  the  attendance  is 
required ; 

3.  To  require  attendance  before  a  commissioner  appointed  to  take 
testimony  by  a  court  of  a  foreign  country  or  of  the  United  States, 
of  any  of  the  States  of  the  United  States,  or  before  any  officer  or 
officers  empowered  by  the  laws  of  the  Canal  Zone  to  take  depositions 
or  testimony,  it  may  be  issued  by  any  judge  of  the  Supreme  Court, 
or  by  any  judge  in  places  within  their  respective  jurisdiction;  with 
like  power  to  enforce  attendance,  and,  upon  certificate  of  contumacy 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  95 

to  said  court,  to  punish  contempt  of  their  process,  as  such  justice  or 
judge  could  exercise  if  the  subpoena  directed  the  attendance  of  the 
witness  before  their  courts  in  a  matter  pending  therein. 

Sec.  419.  Service  of  the  subpoena. — The  service  of  a  subpoena  shall 
be  made  by  delivering  a  copy  thereof,  attested  by  the  officer  making 
the  service  to  be  a  true  copy,  to  the  witness  personally,  giving  or 
offering  to  him  at  the  same  time,  if  demanded  by  him,  the  fees  to 
which  he  is  entitled  for  travel  to  the  place  designated,  and  one  day's 
attendance  there.  The  service  must  be  made  so  as  to  allow  the  wit- 
ness a  reasonable  time  for  preparation  and  travel  to  the  place  of 
attendance.  Such  service  may  be  made  by  the  marshal  of  the 
Supreme  Court  or  of  the  circuit,  or  his  deputy,  or  (for  want  thereof) 
by  any  disinterested  person  specially  authorized  in  writing  up  the 
subpoena  by  the  authority  issuing  the  same  to  make  service  thereof. 

Sec.  420.  Service  where  witness  is  concealed. — If  a  witness  is  con- 
cealed in  a  building  or  vessel,  so  as  to  prevent  the  service  of  a  sub- 
poena upon  him,  any  court,  or  judge,  or  any  officer  issuing  a  sub- 
poena may,  upon  proof  by  affidavit  of  the  concealment,  and  of  the 
materiality  of  the  witness,  make  an  order  that  the  marshal,  or  his 
deputy,  shall  forthwith  serve  the  same,  and  the  officer  must  serve  it 
accordingly,  and  for  that  purpose  may  break  into  the  building  or 
vessel  where  the  witness  is  concealed. 

Sec.  421.  Witness  obliged  to  go  outside  the  circuit  to  testify. — A 
witness  upon  a  tender  of  the  fees  allowed  by  law  may  be  required  to 
attend  and  testify  in  any  civil  action  before  any  court  or  judge  of 
the  Canal  Zone. 

Sec.  422.  Person  present  in  court. — A  person  present  in  court  be- 
fore a  judicial  officer  may  be  required  to  testify  in  the  same  manner 
as  if  he  were  in  attendance  upon  a  subpoena  issued  by  such  court  or 
officer. 

Sec.  423.  Disobedience  to  a  subpoena  or  refusal  to  testify. — Diso- 
bedience to  a  subpoena,  or  a  refusal  to  be  sworn,  or  to  answer  as  a 
witness,  or  to  subscribe  an  affidavit  or  deposition  when  required,  may 
be  punished  as  a  contempt  by  the  court  or  officer  issuing  the  sub- 
poena, or  requiring  the  witness  to  be  sworn,  and,  if  the  witness  be  a 
party,  his  complaint  or  answer  may  be  stricken  out. 

Sec.  424.  Civil  liability  of  witness  disobeying  subpoena. — A  wit- 
ness, willfully  and  without  cause,  disobeying  a  subpoena,  shall  be 
liable  for  all  damages  which  may  be  sustained  by  reason  of  the  fail- 
ure of  the  witness  to  attend,  which  damages  may  be  recovered  in  a 
civil  action. 

Sec.  425.  Compelling  attendance  of  witness. — In  case  of  failure 
of  a  witness  to  attend,  the  court  or  officer  issuing  the  subpoena,  upon 
proof  of  the  service  thereof,  and  of  the  failure  of  the  witness,  may 
issue  a  warrant  to  the  marshal,  or  his  deputy,  to  arrest  the  witness 


96  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

and  bring  him  before  the  court  or  officer  where  his  attendance  is 
required,  and  the  costs  of  such  warrant  and  seizure  of  such  witness 
shall  be  paid  by  the  witness  if  the  authority  issuing  it  shall  de- 
termine that  his  failure  to  answer  the  subpoena  was  willful  and  with- 
out just  excuse. 

Sec.  426.  //  witness  imprisoned. — If  the  witness  be  a  prisoner  con- 
fined in  a  jail  or  prison  within  the  Zone,  an  order  for  his  examination 
in  the  jail  or  prison,  upon  deposition,  or  for  his  temporary  removal 
and  production  before  a  court  or  officer,  for  the  purpose  of  being 
orally  examined,  may  be  made,  as  follows: 

1.  By  the  court  itself  in  which  the  action  or  special  proceeding 
is  pending,  unless  it  be  a  district  court ; 

2.  By  a  judge  of  the  Supreme  Court  or  a  judge  of  the  Circuit 
Court  where  the  action  or  proceeding  is  pending  before  a  district 
court,  or  before  a  judge  or  other  person  out  of  court. 

An  order  under  subsection  two  hereof  can  only  be  made  upon  the 
motion  of  a  party  upon  affidavit,  showing  the  nature  of  the  action 
or  proceeding,  testimony  expected  from  the  witness,  and  its  ma- 
teriality. 

Chapter  XIX. 

ARREST    OF    DEFENDANT. 

Sec  427.  Arrest. — A  defendant  may  be  arrested  in  the  following 
cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages  on  a  cause 
of  action  arising  upon  contract,  express  or.  implied,  when  the  de- 
fendant is  about  to  depart  from  the  Zone  with  intent  to  defraud  his 
creditors ; 

2.  In  an  action  for  money  or  property  embezzled  or  fraudulently 
misapplied  or  converted  to  his  own  use  by  a  public  officer,  or  an  officer 
of  a  corporation,  or  an  attorney,  factor,  broker,  agent,  or  clerk,  in 
the  course  of  his  employment  as  such,  or  by  any  other  person  in  a 
fiduciary  capacity,  or  for  a  willful  violation  of  duty ; 

3.  In  an  action  to  recover  the  possession  of  personal  property  un- 
justly detained,  when  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  to  prevent  its  being  found  or 
taken  by  the  officer; 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  contracting 
the  debt  or  incurring  the  obligation  upon  which  the  action  is  brought ; 
or  in  concealing  or  disposing  of  the  property,  for  the  taking,  deten- 
tion, or  conversion  of  which  the  action  is  brought ; 

5.  When  the  defendant  has  removed  or  disposed  of  his  property, 
or  is  about  to  do  so,  with  intent, to  defraud  his  creditors. 

Sec  428.  Who   may  grant  order  for  arrest. — An   order  for  the 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  97 

arrest  of  the  defendant  must  be  obtained  from  the  circuit  judge  or 
the  district  judge  before  whom  the  action  is  brought.  Without  such 
order  the  defendant  cannot  be  arrested. 

Sec.  429.  Granting  order  of  arrest. — A  judge  shall  grant  an  order 
of  arrest  when  it  is  made  to  appear  to  him  by  affidavit  of  the  plain- 
tiff, or  some  other  person  who  knows  the  facts,  that  a  sufficient  cause 
of  action  exists,  and  that  the  cause  is  one  of  those  mentioned  in 
section  427. 

If  the  order  for  arrest  is  made,  the  affidavit  must  be  filed  with  the 
clerk  of  the  court  or  the  district  judge,  as  the  case  may  be. 

Sec  430.  Obligation  for  damages  in  case  of  arrest. — Before  mak- 
ing the  order,  the  party  applying  for  it  or  some  person  on  his  behalf 
must  execute  to  the  defendant  an  obligation  in  an  amount  to  be  fixed 
by  the  judge  and  with  sufficient  surety,  to  be  approved  by  him, 
which  obligation  must  be  at  least  three  hundred  dollars,  that  the 
plaintiff  will  pay  all  costs  which  may  be  adjudged  to  the  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  the  arrest,  if 
the  same  shall  finally  be  adjudged  to  have  been  wrongfully  made  or 
without  sufficient  cause. 

Sec  431.  Executing  order  of  arrest. — The  officer  making  the  arrest 
must  deliver  to  the  defendant  a  copy  of  the  affidavit  and  of  the  order 
of  arrest,  and  keep  the  defendant  in  custody  until  discharged  by  law. 

Sec  432.  Discharge  of  defendant. — The  defendant,  at  any  time 
before  execution,  may  be  discharged  from  arrest,  either  upon  deposit- 
ing with  the  clerk  or  district  judge  in  whose  court  the  action  is  pend- 
ing the  amount  mentioned  in  the  order  of  arrest,  or  upon  giving  bail 
as  provided  in  the  next  section. 

Sec  433.  Giving  bail. — The  defendant  may  give  bail  by  causing 
an  obligation  to  be  executed  to  the  plaintiff,  with  two  or  more  suffi- 
cient sureties  to  be  approved  by  the  judge  who  granted  the  order  of 
arrest,  that  the  defendant  will  at  all  times  render  himself  amenable 
to  the  process  of  the  court,  during  the  pendency  of  the  action  and  to 
such  as  may  be  issued  to  enforce  the  judgment  therein,  or  that  they 
will  pay  to  the  plaintiff  the  amount  of  any  judgment  which  may  be 
recovered  in  the  action. 

Sec  434.  Exoneration  of  bail. — At  any  time  before  the  issuance  of 
execution,  the  sureties  ma}^  surrender  the  defendant  to  the  officer  of 
the  court,  who  shall  thereafter  retain  him  in  custody,  until  he  is 
otherwise  discharged  by  law ;  and  for  that  purpose  the  sureties  may 
themselves  arrest,  or,  by  written  authority  indorsed  on  a  certified 
copy  of  the  obligation,  may  empower  the  officer  of  the  court  to  arrest 
the  defendant.  If  the  bail  do  not  surrender  the  defendant  or  cause 
him  to  be  surrendered  before  the  issuing  of  execution  on  the  judg- 
ment, they  shall  be  finally  charged  on  their  obligation  and  bound  to 


98  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

pay  upon  demand  the  amount  of  the  judgment,  which  may  be  col- 
lected from  them  after  notice  and  summary  hearing  in  the  same 
action,  except  in  the  cases  hereinafter  provided. 

Sec.  435.  Death  or  imprisonment  of  defendant. — Bail  shall  be 
exonerated  by  the  death  of  the  defendant,  or  his  imprisonment  in  a 
public  penitentiary,  or  by  his  legal  discharge  from  the  obligation. 

Sec.  436.  Filing  order  of  arrest  and  bond. — The  officer  serving  the 
order  of  arrest  shall  immediately  after  perfecting  the  arrest  file  the 
order  with  this  return  thereon,  together  with  the  obligation,  in  the 
office  of  the  clerk  of  the  court  in  which  the  action  is  pending. 

Sec.  437.  Disposition  of  money  deposited. — Where  money  has  been 
deposited  in  lieu  of  bail,  it  shall  be  applied  under  the  direction  of  the 
court  to  the  satisfaction  of  such  judgment,  if  any,  as  may  have  been 
rendered  in  favor  of  the  plaintiff,  and  after  satisfying  the  judgment 
the  balance  shall  be  refunded  to  the  defendant  or  his  assignee.  If 
the  judgment  is  in  favor  of  the  defendant,  the  whole  sum  deposited 
must  be  refunded  to  him,  or  his  assignee. 

Sec.  438.  Application  by  defendant  for  reduction  of  bail  or  vacat- 
ing order  of  arrest. — A  defendant  arrested  may,  at  any  time  before 
the  trial  of  the  action,  apply  to  the  judge  who  made  the  order,  or  to 
the  court  in  which  the  action  is  pending,  upon  reasonable  notice,  to 
vacate  the  order  of  arrest,  or  to  reduce  the  amount  of  bail.  Upon 
such  application,  the  judge  or  court  shall  grant  immediate  hearing, 
after  notice  to  the  parties,  and,  upon  hearing,  make  such  orders  as 
appear  to  be  just,  either  as  to  continuing  the  order  of  arrest,  or  vacat- 
ing the  same,  or  reducing  the  amount  of  bail  required. 

Sec.  439.  Jail  limits. — A  defendant  arrested  under  this  chapter  and 
confined  to  jail  in  the  absence  of  bail  may  be  given  the  jail  limits, 
either  for  the  circuit  in  which  the  action  against  him  is  pending,  or 
for  the  Canal  Zone,  in  the  discretion  of  the  court,  upon  taking  an 
oath  that  he  is  insolvent  and  is  unable  to  procure  bail,  and  upon  filing 
an  undertaking  that  he  will  not  depart  from  the  jail  limits  until  the 
debt  be  paid  or  bail  be  furnished:  Provided,  however,  that  at  the 
expiration  of  one  year  from  the  time  at  which  he  may  be  given  the 
jail  limits  he  may  apply  to  the  court  for  relief  from  the  jail  limits, 
and  the  judge  thereof  may  grant  such  relief  and  discharge  from  the 
order  of  arrest,  upon  its  being  made  to  appear  by  satisfactory  evi- 
dence that  he  is  insolvent  and  by  reason  of  any  just  cause  has  not 
been  able  to  satisfy  the  judgment  against  him. 

Chapter  XX. 

ATTACHMENT   OF    DEFENDANT'S    PROPERTY. 

Sec.  440.  Attachment. — A  plaintiff  may,  at  the  commencement  of 
his  action,  or  at  any  time  afterwards,  have  the  property  of  the  de- 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  99 

fendant  not  exempt  from  execution  attached  as  security  for  the  sat- 
isfaction of  any  judgment  that  may  be  recovered,  unless  the  defend- 
ant gives  security  to  pay  such  judgment,  in  the  manner  hereinafter 
provided : 

1.  In  all  cases  providing  for  the  arrest  of  a  defendant;  but  the 
plaintiff  must  make  an  election  as  to  whether  he  will  ask  for  an 
order  of  arrest  or  an  order  of  attachment;  he  shall  not  be  entitled 
to  both  orders ; 

2.  In  an  action  against  a  defendant  not  residing  in  the  Canal 
Zone. 

Sec.  441.  Who  may  issue  order  of  attachment. — An  order  for  at- 
tachment may  be  granted  by  a  judge  of  the  Supreme  Court  or  by  a 
judge  of  the  Circuit  Court  for  the  circuit  in  which  the  action  is  pend- 
ing, or  by  a  district  judge  in  an  action  properly  brought  before  his 
court. 

Sec.  442.  Granting  order  of  attachment. — A  judge  shall  grant  an 
order  of  attachment  when  it  is  made  to  appear  to  the  judge  by  the 
affidavit  of  the  plaintiff,  or  of  some  other  person  who  knows  the 
facts,  that  a  sufficient  cause  of  action  exists,  and  that  the  case  is 
one  of  those  authorized  by  this  code  and  that  there  is  no  other  suffi- 
cient security  for  the  claim  sought  to  be  enforced  by  the  action,  and 
that  the  amount  due  to  the  plaintiff  above  all  legal  set-offs  or  counter- 
claims is  as  much  as  the  sum  for  which  the  order  is  granted. 

Sec.  443.  Obligation  for  damages  in  case  of  attachment. — Before 
the  order  is  made,  the  party  applying  for  it,  or  some  person  on  his 
behalf,  must  execute  to  the  defendant  an  obligation  in  an  amount  to 
be  fixed  by  the  judge,  and  with  sufficient  surety  to  be  approved  by 
him,  which  obligation  shall  be  for  a  sum  not  less  than  two  hundred 
dollars,  and  not  exceeding  the  amount  claimed  by  the  plaintiff,  that 
the  plaintiff  will  pay  all  the  costs  which  may  be  adjudged  to  the  de- 
fendant, and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  if  the  same  shall  finally  be  adjudged  to  have  been  wrong- 
ful or  without  sufficient  cause. 

Sec.  444.  Executing  order  of  attachment  as  to  movables. — The  order 
of  attachment  shall  be  served  by  the  officer  of  the  court  by  attaching 
and  safely  keeping  all  the  movable  property  of  the  defendant  in  the 
Canal  Zone,  or  so  much  thereof  as  may  be  sufficient  to  satisfy  the 
plaintiff's  demands,  unless  the  defendant  gives  security  by  obligation 
to  the  plaintiff,  with  sufficient  surety,  to  be  approved  by  the  judge 
who  granted  the  order  of  attachment,  in  an  amount  equal  to  the  value 
of  the  property  which  has  been  or  is  about  to  be  attached.  The 
property  so  attached  shall  be  held  to  await  final  judgment,  in  execu- 
tion, unless  released  as  provided  in  this  code. 

Sec.  445.  Executing  order  of  attachment  as  to  real  property. — 
Real  property,  standing  upon  the  records  in  the  name  of  the  de- 


100  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

fendant  or  not  appearing  at  all  upon  the  record,  shall  be  attached 
by  filing  with  the  registrar  of  titles  of  land,  for  the  circuit  in  which 
the  land  is  situated,  a  copy  of  the  order  of  attachment,  together  with 
a  description  of  the  property  attached,  and  a  notice  that  it  is  at- 
tached, and  by  leaving  a  similar  copy  of  the  order,  description,  and 
notice  with  an  occupant  of  the  property,  if  there  is  one. 

Real  property  or  an  interest  therein,  belonging  to  the  defendant 
and  held  by  any  other  person,  or  standing  on  the  records  in  the  name 
of  any  person,  shall  be  attached  by  filing  with  the  registrar  of  land 
titles  in  the  circuit  in  which  the  land  is  situated,  a  copy  of  the  order 
of  attachment,  together  with  a  description  of  the  property,  and  a 
notice  that  such  real  property  and  any  interest  of  the  defendant 
therein,  held  by  or  standing  in  the  name  of  such  other  person  (naming 
him)  are  attached;  and  by  leaving  with  the  occupant,  if  any,  and 
with  such  other  person,  or  his  agent,  if  known  and  within  the 
circuit,  a  copy  of  the  order,  description  and  notice.  The  registrar 
must  index  attachments  filed  under  the  first  paragraph  of  this  section, 
in  the  names,  both  of  the  plaintiff  and  of  the  defendant,  and  must 
index  attachments  filed  under  the  second  paragraph  of  this  section, 
in  the  names  of  the  plaintiff  and  of  the  defendant  and  of  the  person 
by  whom  the  property  is  held  or  in  whose  name  it  stands  on  the 
records. 

Sec.  446.  Executing  order  of  attachment  as  to  stocks  or  shares. — 
Stocks  or  shares,  or  an  interest  in  stocks  or  shares,  of  any  corporation 
or  company  shall  be  attached  by  leaving  with  the  president,  or  other 
head  of  the  same,  or  the  secretary,  cashier,  or  other  managing  agent 
thereof,  a  copy  of  the  order  of  attachment  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached,  in  pursuance  of 
such  order. 

Sec  447.  Executing  order  of  attachment  as  to  debts  and  credits. — 
Debts  and  credits,  and  other  personal  property  not  capable  of  manual 
delivery,  shall  be  attached  by  leaving  with  the  person  owing  such  debts 
or  having  in  his  possession  or  under  his  control,  such  credits  and  other 
personal  property,  a  copy  of  the  order  of  attachment,  and  a  notice 
that  the  debts  owing  by  him  to  the  defendant,  or  the  credits  and  other 
personal  property  in  his  possession  or  under  his  control,  belonging 
to  the  defendant,  are  attached  in  pursuance  of  such  order. 

Sec  448.  Effect  of  attachment  of  debts  and  credits. — All  persons 
having  in  their  possession  or  under  their  control  any  credits  or  other 
personal  property  belonging  to  the  defendant,  or  owing  any  debts 
to  the  defendant  at  the  time  of  service  upon  them  of  a  copy  of  the 
order  of  attachment  and  notice  as  provided  in  the  last  section,  shall 
be,  unless  such  property  be  delivered  up  or  transferred,  or  such  debts 
be  paid  to  the  clerk  of  the  court  in  which  the  action  is  pending, 
liable  to  the  plaintiff  for  the  amount  of  such  credits,  property,  or 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  101 

debts,  until  the  attachment  be  discharged,  or  any  judgment  recovered 
by  him  be  satisfied. 

Sec.  449.  Disposition  of  debts  and  credits  attached. — Any  person 
owing  debts  to  the  defendant,  or  having  in  his  possession  or  under 
his  control  any  credits  or  other  personal  property  belonging  to  the 
defendant,  may  be  required  to  attend  before  the  court  in  which  the 
action  is  pending  or  before  a  referee  appointed  by  the  court,  and  be 
examined  on  oath  respecting  the  same.  The  defendant  may  also  be 
required  to  attend,  for  the  purpose  of  giving  information  respecting 
his  property,  and  may  be  examined  on  oath.  The  court  may,  after 
such  examination,  order  personal  property  capable  of  manual  deliv- 
ery, belonging  to  the  defendant,  in  the  possession  of  the  person  so 
required  to  attend  before  the  court,  to  be  delivered  to  the  clerk  of 
the  court  on  such  terms  as  may  be  just,  having  reference  to  any  liens 
thereon  or  claims  against  the  same,  to  await  the  final  result  of  the 
action. 

Sec.  450.  Return  of  order  of  attachment. — The  officer  of  the  court 
making  the  attachment  shall  indorse  upon  its  back  a  full  statement 
of  all  his  proceedings  under  the  order,  including  a  complete  inventory 
of  the  property  attached,  and  sign  the  same,  and  shall  return  the 
order  of  attachment  to  the  clerk  of  the  court  in  which  the  action  is 
pending  to  be  filed  with  the  other  papers  in  the  action. 

Sec.  451.  Disposition  of  perishable  property. — Whenever  it  shall 
be  made  to  appear  to  the  judge  or  the  court  in  which  the  action  is 
pending,  by  hearing,  after  notice  to  both  parties  if  practicable,  that 
the  property  attached  is  perishable,  or  that  the  interests  of  all  the 
parties  to  the  action  will  be  subserved  by  the  sale  thereof,  the  judge 
may,  on  motion,  order  such  property  to  be  sold  at  public  auction  in 
such  manner  as  he  maj7  direct,  and  the  proceeds  to  be  deposited  in 
court  to  abide  the  judgment  in  the  action. 

Sec.  452.  Final  disposition  of  property  attached. — If  judgment  be 
received  by  the  plaintiff,  the  officer  of  the  court  must  cause  the  same 
to  be  satisfied,  out  of  the  property  attached,  if  it  be  sufficient  for  that 
purpose,  in  the  following  manner : 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable 
or  other  property  sold  by  him  in  pursuance  pf  the  order  of  the  judge, 
or  so  much  as  shall  be  necessary  to  satisfy  the  judgment. 

2.  If  any  balance  remain  due,  and  execution  shall  have  been  issued 
on  the  judgment,  he  shall  sell  under  the  execution  so  much  of  the 
property,  real  or  personal,  as  may  be  necessary  to  satisfy  the  balance, 
if  enough  for  that  purpose  remains  in  his  hands,  or  in  that  of  the 
clerk  of  the  court. 

3.  By  collecting  from  all  persons  having  in  their  possession  credits 
belonging  to  the  defendant,  or  owing  debts  to  the  defendant  at  the 


102  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL.   ZONE. 

time  of  the  service  upon  them  of  the  order  of  attachment  of  such 
credits  or  debts,  the  amount  of  such  credits  and  debts  as  determined 
by  the  court  in  the  action,  and  stated  in  the  final  judgment,  and 
paying  the  proceeds  of  such  collection  over  to  the  plaintiff. 

The  officer  shall  make  return  in  writing  to  the  court  of  his  pro- 
ceedings under  this  action. 

Sec.  453.  Collections  of  balance  of  execution. — If,  after  realizing 
upon  all  the  property  attached,  including  the  proceeds  in  extinguish- 
ment of  the  judgment,  less  the  expenses  of  proceedings  upon  the 
judgment,  any  balance  shall  remain  due,  the  officer  of  the  court 
must  proceed  to  collect  such  balance  as  upon  an  execution  in  other 
cases.  Whenever  the  judgment  shall  have  been  paid,  the  officer,  upon 
reasonable  demand,  must  deliver  over  to  the  defendant  the  attached 
property  remaining  in  his  hands,  and  any  proceeds  of  the  property 
attached  unapplied  on  the  judgment. 

Sec  454.  Proceedings  after  return  of  execution  unsatisfied. — If 
the  execution  be  returned  unsatisfied,  in  whole  or  in  part,  the  plain- 
tiff may  maintain  an  action  upon  the  obligations,  if  any,  given. 

Sec.  455.  Disposition  of  attached  property  in  case  of  judgment  for 
defendant. — If  the  defendant  recovers  judgment  against  the  plaintiff, 
all  the  proceeds  of  sales  and  money  collected  by  the  officer  of  the 
court,  under  the  order  of  attachment,  and  all  the  property  attached 
remaining  in  said  officer's  hands  shall  be  delivered  to  the  defendant, 
and  the  order  of  attachment  discharged,  and  the  defendant  may  have 
judgment  against  the  plaintiff  upon  the  obligation  given  for  any 
damages  he  may  have  sustained  by  reason  of  the  attachment,  after 
summary  hearing  in  the  same  action  on  due  notice. 

Sec.  456.  Dissolution  of  order  of  attachment. — At  any  time,  after 
the  commencement  of  an  action  upon  which  an  order  of  attachment 
has  been  made,  the  defendant  may  upon  reasonable  notice  to  the 
plaintiff,  apply  to  the  judge  who  granted  the  order  of  attachment, 
or  to  the  judge  of  the  court  in  which  the  action  is  pending,  for  an 
order  to  discharge  the  attachment,  wholly  or  in  part;  and  the  judge 
shall,  after  hearing,  on  due  notice  to  both  parties,  discharge  the 
order  of  attachment  provided  the  defendant  shall  execute  an  obliga- 
tion to  the  plaintiff  with  surety  to  be  approved  by  the  judge,  to  the 
effect  that  in  case  the  plaintiff  recover  judgment  in  the  action,  the 
defendant  will,  on  demand,  redeliver  the  attached  property  so  re- 
leased to  the  officer  of  the  court,  to  be  applied  to  the  payment  of  the 
judgment,  or,  in  default  thereof,  that  the  defendant  and  surety, 
will,  on  demand,  pay  to  the  plaintiff  the  full  value  of  the  property 
released.  The  judge  making  such  order  may  fix  the  sum  for  which 
the  undertaking  must  be  executed,  and  for  that  purpose  may  take  such 
steps  as  he  finds  necessary  to  determine  the  value  of  the  property 
attached,  which  obligation  shall  be  filed  with  the  other  papers  in  the 


CODE    OF    CIVIL  PROCEDURE    OP    THE    CANAL    ZONE.  103 

cause,  and  upon  its  approval  by  the  judge  and  the  making  of  the 
order  by  him  for  a  discharge  of  the  attachment,  all  of  the  property 
so  released,  and  all  of  the  proceeds  of  the  sales  thereof,  shall  be 
delivered  to  the  defendant,  the  obligation  aforesaid  standing  in 
place  of  the  property  so  released. 

Sec.  457.  Discharge  of  attachment  on  motion. — The  defendant 
may  also  at  any  time  either  before  or  after  the  release  of  the  attached 
property,  or  before  any  attachment  shall  have  been  actually  levied, 
upon  reasonable  notice  to  the  plaintiff,  apply  to  the  judge  who 
granted  the  order  of  attachment,  or  to  the  judge  of  the  court  in  which 
the  action  is  pending,  for  an  order  to  discharge  the  attachment  on 
the  ground  that  the  same  was  improperly  or  irregularly  issued  or 
was  levied  upon  property  exempt  from  execution.  If  the  motion  be 
made  on  affidavits  on  the  part  of  the  defendant,  but  not  otherwise, 
the  plaintiff  may  oppose  the  same  by  affidavits  or  other  evidence  in 
addition  to  those  on  which  the  attachment  was  made. 

If  upon  such  application  it  satisfactorily  appears  that  the  writ  of 
attachment  was  improperly  or  irregularly  issued,  it  must  be  dis- 
charged. 

Sec  458.  Right  of  third  party,  against  officer. — If  the  property 
taken  be  claimed  by  any  other  person  than  the  defendant  or  his  agent 
and  such  person  make  an  affidavit  of  his  title  thereto  or  right  to 
the  possession  thereof,  stating  the  grounds  of  such  right  or  title, 
and  serve  the  same  upon  the  officer  while  he  has  possession  of  the 
property,  the  officer  shall  not  be  bound  to  keep  the  property  under 
the  attachment,  unless  the  plaintiff,  on  demand  of  him,  or  his  agent, 
indemnify  the  officer  against  such  claim  by  an  obligation  with  two 
sufficient  sureties;  and  no  claim  to  such  property  or  damage  for  its 
seizure  by  any  other  person  than  the  defendant  or  his  agent  shall 
be  valid  against  the  officer  unless  so  made,  but  nothing  herein  con- 
tained shall  prevent  such  third  person  from  vindicating  his  claim 
to  the  property  by  any  proper  action. 

Chapter  XXI. 

MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 

Sec.  459.  Entering  judgment. — In  all  cases  judgment  must  be  en- 
tered by  the  clerk  in  conformity  with  the  decision,  after  the  rendition 
of  the  judgment,  unless  the  court  orders  the  case  to  be  reserved  for 
argument  or  further  consideration,  or  grants  a  stay  of  proceedings. 

Sec.  460.  When  judgment  reserved. — When  the  case  is  reserved  for 
argument  or  further  consideration,  as  mentioned  in  the  last  section,  it 
may  be  brought  by  either  party  before  the  court  for  argument. 

Sec.  461.  Judgment  for  affirmative  relief  for  defendant. — If  the 
counter-claim  established  at  the  trial,  exceeds  the  plaintiff's  demand, 


104  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

judgment  for  the  defendant  must  be  given  for  the  excess;  or  if  it 
appear  that  the  defendant  is  entitled  to  any  other  affirmative  relief, 
judgment  must  be  given  accordingly. 

Sec.  462.  Judgment  possession  personal  property,  in  contract. — In 
an  action  to  recover  the  possession  of  personal  property  judgment  for 
the  plaintiff  may  be  for  the  possession  or  the  value  thereof,  in  case  a 
delivery  can  not  be  had,  and  damages  for  the  detention.  If  the  prop- 
erty has  been  delivered  to  the  plaintiff,  and  the  defendant  claim  a  re- 
turn thereof,  judgment  for  the  defendant  may  be  had  for  the  return 
of  the  property ;  or  the  value  thereof,  in  case  a  return  can  not  be  had, 
and  damages  for  taking  and  withholding  the  same.  In  an  action  on 
a  contract  or  obligation  in  writing,  for  the  direct  payment  of  money, 
made  payable  in  a  specified  kind  of  money  or  currency,  judgment  for 
the  plaintiff,  whether  it  is  by  default  or  other  decision,  may  follow  the 
contract  or  obligation,  and  be  made  payable  in  United  States  Currency 
of  the  value  of  the  money  or  currency  specified  therein,  at  the  date  of 
the  obligation,  and  in  all  actions  for  the  recovery  of  money,  if  the 
plaintiff  alleges  in  his  complaint  that  the  same  was  understood 
or  agreed  by  the  respective  parties  to  be  payable  in  a  specified 
kind  of  money  or  currency,  and  this  fact  is  admitted  by  the  default 
of  the  defendant,  or  established  by  evidence,  the  judgment  for  the 
plaintiff  must  be  made  payable  in  United  States  Currency  of  the 
value  of  the  money  or  currency  so  alleged  in  the  complaint,  at  the 
date  of  the  obligation;  and  in  an  action  against  any  person  for  the 
recovery  of  money  received  by  such  person  in  a  fiduciary  capacity  or 
to  the  use  of  another,  judgment  for  the  plaintiff  must  be  made  payable 
in  United  States  Currency  of  the  value  of  the  money  or  currency  so 
received  by  such  person  at  the  date  it  was  so  received. 

Sec.  463.  Judgment  where  party  dies. — If  a  party  die  after  a  judg- 
ment or  decision  upon  any  issue  of  fact  and  before  judgment,  the  court 
may  nevertheless,  render  judgment  thereon.  Such  judgment  is  not  a 
lien  on  the  real  property  of  the  deceased  party,  but  is  payable  in  the 
course  of  administration  on  his  estate. 

Sec  464.  Clerics  dockets. — The  dockets  kept  by  the  clerk  are  open 
at  all  times  during  office  hours  for  the  inspection  of  the  public,  with- 
out charge.  The  clerk  must  arrange  the  several  dockets  kept  by  him 
in  such  manner  as  to  facilitate  their  inspection. 

Chapter  XXII. 

EXECUTION. 

Sec.  465.  Issuance,  form  and  requisites  of  execution. — The  writ  of 
execution  must  be  issued  in  the  name  of  "  The  United  States  of 
America,  The  Canal  Zone,"  ss.,  sealed  with  the  seal  of  the  Court  and 
subscribed  bv  the  clerk,  and  be  directed  to  the  marshal,  and  it  must 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  105 

intelligently  refer  to  the  judgment,  stating  the  court,  the  circuit 
where  the  judgment  was  entered,  and  if  it  be  for  money,  the  amount 
thereof,  and  the  amount  actually  due  thereon,  the  execution  must  also 
state  the  value  of  the  money  or  currency  in  which  the  judgment  is 
payable  in  United  States  currency,  and  must  require  the  marshal  sub- 
stantially as  follow-: 

1.  If  it  be  against  the  property  of  the  judgment  debtor,  it  shall 
require  the  marshal  to  satisfy  the  judgment,  with  interest,  out  of  the 
personal  property  of  such  debtor,  and  if  sufficient  personal  property 
can  not  be  found,  then  out  of  his  real  property ;  or  if  the  judgment 
be  a  lien  upon  real  property,  then  out  of  the  real  property  belonging 
to  him  on  the  day  when  the  judgment  was  rendered  or  at  any  time 
thereafter. 

2.  If  it  be  against  real  or  personal  property,  in  the  hands  of  the 
personal  representatives,  heirs,  devisees,  legatees,  tenants  or  trustees, 
it  must  require  the  marshal  to  satisfy  the  judgment,  with  interest, 
out  of  such  property. 

3.  If  it  be  for  delivery  of  real  or  personal  property,  it  must  re- 
quire the  marshal  to  deliver  the  possession  of  the  same,  describing 
it  to  the  party  entitled  thereto,  and  may  at  the  time  require  the 
marshal  to  satisfy  any  costs,  damages,  rents  or  profits  recovered  by 
the  said  judgment,  out  of  the  personal  property  of  the  person  against 
whom  it  was  rendered,  and  the  value  of  the  property  for  which  the 
judgment  was  rendered,  to  be  specified  therein;  if  a  delivery  thereof 
can  not  be  had,  and  if  sufficient  personal  property  can  not  be  found, 
then  out  of  real  property. 

Sec.  466.  Executions  under  special  judgments. — When  the  judg- 
ment requires  the  sale  of  property,  the  same  may  be  enforced  by  a  writ 
reciting  such  judgment,  or  the  material  parts  thereof,  and  directing 
the  proper  officer,  to  execute  the  judgment  by  making  the  sale  and 
applying  the  proceeds  in  conformity  therewith.  When  the  judgment 
requires  the  performance  of  any  other  act  than  as  above  designated, 
a  certified  copy  of  the  judgment  may  be  served  upon  the  party  against 
whom  the  same  is  rendered,  or  upon  the  person  or  officer  required 
thereby  or  by  law  to  obey  the  same,  and  obedience  thereto  may  be 
enforced  by  the  court. 

Sec.  407.  Judgment  lien,  lapse  thereof. — A  judgment  of  a  court  of 
record  shall  be  a  lien  on  the  real  estate  of  the  person  against  whom  it 
is  obtained  situated  within  the.  circuit  for  which  the  court  is  held  from 
the  time  the  same  is  rendered  or  revived  for  the  period  of  five  years 
and  no  longer :  Provided,  That  there  shall  be  no  priority  of  the  lien  of 
one  judgment  over  that  of  another  rendered  at  the  same  term  of  court. 
or  on  the  same  day  in  vacation ;  and  upon  the  filing  in  the  office  of  the 
clerk  of  any  court  of  record  in  any  circuit  of  the  Zone,  of  a  transcript 
of  a  judgment  or  decree  rendered  in  any  other  circuit  of  the  Zone, 


106  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

such  judgment  shall  have  the  like  force  and  effect  and  shall  be  a  lien 
upon  the  real  estate  of  the  party  against  whom  the  same  is  obtained  in 
said  circuit  where  filed,  and  execution  may  issue  thereon  in  said 
circuit,  in  like  manner  as  in  the  circuit  where  originally  obtained. 
When  execution  is  not  issued  on  a  judgment  within  one  year  from 
the  time  the  same  becomes  a  lien  it  shall  thereafter  cease  to  be  a  lien, 
but  execution  may  issue  upon  such  judgment  at  any  time  within 
said  five  years,  and  shall  become  a  lien  on  such  real  estate  from  the 
time  it  shall  be  delivered  to  the  marshal  or  other  proper  officer,  to 
be  executed. 

Sec.  468.  Exemption  in  favor  of  party  restrained.— -When  the  party 
in  whose  favor  a  judgment  is  rendered  is  restrained,  by  injunction,  or 
by  appeal,  or  by  the  order  of  a  judge  or  court,  or  is  delayed,  on  ac- 
count of  the  death  of  the  defendant,  either  from  issuing  execution  or 
selling  thereon,  the  time  he  is  so  restrained  or  delayed  shall  not  be 
considered  as  any  part  of  the  time  before  mentioned. 

Sec  469.  Real  estate,  definition. — The  term  "  real  estate,"  when 
used  in  this  act  shall  include  lands,  tenements,  hereditaments,  and  all 
legal  and  equitable  rights  and  interest  therein  and  thereto,  including 
estates  for  the  life  of  the  debtor  or  of  another  person,  and  estates  for 
years,  and  leasehold  estates,  when  the  unexpired  term  exceeds  one 
year. 

Sec  470.  Execution  on  judgment. — The  person  in  whose  favor  any 
judgment,  as  aforesaid,  may  be  obtained,  may  have  execution  thereon 
in  the  usual  form,  directed  to  the  proper  officer  of  any  circuit,  in  this 
Zone,  against  the  lands  and  tenements,  goods  and  chattels  of  the  per- 
son against  whom  the  same  is  obtained,  or  against  his  body,  when  the 
same  is  authorized  by  law. 

Sec  471.  Execution  after  expiration  of  judgment  lien. — No  execu- 
tion shall  issue  upon  any  judgment  after  the  expiration  of  five  years 
from  the  time  the  same  becomes  a  lien,  except  upon  the  revival  of  the 
same  b}^  scire  facias;  but  real  estate  levied  upon  within  five  years 
may  be  sold  upon  a  venditio  rei  exponas,  as  any  time  within  one  year 
after  the  expiration  of  said  five  years. 

Sec  472.  Interest  on  judgment. — Every  execution  issued  upon  a 
judgment  shall  direct  the  collection  of  interest  thereon,  from  the  day 
of  recovery  of  the  judgment  until  the  same  is  paid,  at  the  rate  of  six 
per  centum  per  annum. 

Sec  473.  Return  of  execution. — Executions  and  writs  of  venditio 
rei  exponas  shall  be  made  returnable  sixty  days  after  the  date  thereof. 

Sec  474.  Binding  personal  property  by  execution. — No  execution 
shall  bind  the  goods  and  chattels  of  the  person  against  whom  it  is 
issued,  until  it  is  delivered  to  the  marshal  or  other  proper  officer  to 
be  executed ;  and  for  the  better  manifestation  of  the  time,  the  marshal 
or  other  officer  shall,  on  receipt  of  such  writ,  indorse  upon  the  back 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL,    ZONE.  107 

thereof  the  day  of  the  month  and  year  and  hour  wheu.  he  received  the 
same. 

Sec.  475.  Property  subject  to  execution.- — All  and  singular  the 
lands,  tenements,  real  estate,  goods  and  chattels  (except  such  as  is  by 
law  declared  to  be  exempt)  of  every  person  against  whom  any  judg- 
ment has  been  or  shall  be  hereafter  obtained  in  any  court  of  record, 
for  any  debt,  damages,  costs,  or  other  sum  of  money,  shall  be  liable 
to  be  sold  upon  execution,  to  be  issued  upon  such  judgment. 

Sec  476.  Order  of  levy  under  execution. — The  person  in  whose 
favor  execution  is  issued,  may  elect  on  what  property  not  exempt 
from  execution  he  will  have  the  same  levied,  provided  real  property 
shall  be  last  taken. 

Sec  477.  Property  taken  on  execution,  how  sold. — When  real  or 
personal  property  is  taken  on  execution,  if  the  same  is  susceptible  of 
division  it  shall  be  sold  in  separate  tracts,  lots  or  articles,  and  only  so 
much  shall  be  sold  as  is  necessary  to  satisfy  the  executivm  and  costs. 

Sec  478.  Where  there  are  concurrent  judgments. — When  the  lien 
of  several  judgments  is  concurrent,  by  reason  of  the  same  having  been 
rendered  at  the  same  term  of  court  or  on  the  same  day  in  vacation,  and 
execution  issued  upon  any  one  of  such  judgments  is  levied  upon  prop- 
erty subject  to  such  lien,  the  property  so  levied  upon  shall  be  sold  for 
the  benefit  of  all  executions  issued  upon  such  judgments,  and  delivered 
to  the  same  officer  or  any  of  his  deputies  before  sale;  and  the  pro- 
ceeds of  such  sale  shall  be  divided  upon  the  several  executions,  pro 
rata,  according  to  their  several  amounts. 

Sec  479.  Advertisement  of  real  property  for  sale. — No  real  estate 
shall  be  sold  by  virtue  of  any  execution  aforesaid,  except  at  public 
vendue,  between  the  hours  of  nine  in  the  morning  and  the  setting  of 
the  sun  of  the  same  day,  nor  unless  the  time  (specifying  the  particular 
hour  of  said  day  at  which  said  sale  shall  commence)  and  the  place  of 
holding  such  sale  shall  have  been  previously  advertised  three  succes- 
sive weeks,  once  in  each  week,  in  a  public  newspaper  printed  and  pub- 
lished in  the  Canal  Zone,  or  the  cities  of  Colon  or  Panama,  and  by 
putting  up  written  or  printed  notices  thereof  in  at  least  three  of  the 
most  public  places  in  the  circuit  where  the  real  estate  is  situated, 
specifying  the  name  of  the  plaintiff  and  defendant  in  the  execution, 
in  all  of  which  said  notices  the  real  estate  to  be  sold  shall  be  described 
with  reasonable  certainty ;  and  if  there  shall  be  more  than  one  news- 
paper published  in  the  Zone,  or  Colon  or  Panama,  the  judgment  cred- 
itor or  his  attorney  may  designate  the  newspaper  in  which  such  notice 
shall  be  published :  Provided,  That  no  greater  charge  shall  be  made 
for  publishing  said  notices  than  two  dollars  for  each  one  hundred 
words  contained  therein. 

Sec  480.  Irregular  sale,  liability  of  marshal. — If  any  marshal  or 
other  officer  shall  sell  any  real  estate  by  virtue  of  any  such  execution, 


108  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

otherwise  than  in  the  manner  aforesaid,  or  without  such  previous 
notice,  the  officer  so  offending  shall,  for  every  such  offense,  forfeit 
and  pay  the  sum  of  fifty  dollars  to  be  recovered  with  costs  of  suit,  by 
the  person  whose  property  is  sold.  Provided,  however,  that  no  such 
offense,  nor  any  irregularity  on  the  part  of  the  marshal,  or  other 
officer  having  the  execution,  shall  be  deemed  to  affect  the  validity  of 
any  sale  made  under  it,  unless  it  shall  be  made  to  appear  that  the 
purchaser  had  notice  thereof. 

Sec.  481.  Sale  of  real  estate,  marshal's  certificate. — When  any  real 
estate  is  sold  by  virtue  of  an  execution,  judgment,  or  decree  of  fore- 
closure of  mortgage,  or  enforcement  of  mechanic's  lien,  or  vendor's 
lien,  or  for  the  payment  of  money,  it  shall  be  the  duty  of  the  marshal, 
or  other  officer,  instead  of  executing  a  deed  for  the  premises  sold,  to 
give  to  the  purchaser  a  certificate  describing  the  premises  purchased 
by  him,  showing  the  amount  paid  therefor,  or  if  purchased  by  the 
person  in  whose  favor  the  execution  or  decree  is,  the  amount  of  his 
bid,  the  time  when  the  purchaser  will  be  entitled  to  a  deed,  unless  the 
premises  shall  be  redeemed,  as  provided  in  this  act. 

Sec  482.  Filing  duplicate  of  such  certificate. — The  marshal,  or 
other  officer  making  the  sale,  shall,  within  ten  days  from  such  sale, 
file  in  the  office  of  the  registrar  a  duplicate  of  such  certificate,  which 
shall  be  recorded  by  such  registrar ;  and  such  certificate  or  duplicate, 
or  record,  and  certified  copy  of  .the  record  thereof,  shall  be  evidence 
of  the  facts  therein  stated. 

Sec  483.  Redemption  of  real  estate  sold  under  execution. — Any 
defendant,  his  heirs,  administrators,  or  assigns,  or  any  person  acting 
on  behalf  of  and  with  the  authority  of  the  defendant,  may,  within 
twelve  months  from  said  sale,  redeem  the  real  estate  so  sold  by  pay- 
ing to  the  purchaser  thereof,  his  executors,  administrators  or  assigns 
or  to  the  marshal  or  other  officer  who  sold  the  same,  or  his  successor 
in  office,  for  the  benefit  of  such  purchaser,  his  executors,  administra- 
tors or  assigns,  the  sum  of  money  for  which  the  premises  were  sold 
or  bid  off,  with  interest  thereon  at  the  rate  of  six  per  centum  per 
annum  from  the  time  of  such  sale,  whereupon  such  sale  and  certificate 
shall  be  null  and  void. 

Sec  484.  Bight  of  purchaser  pending  redemption  period — Waste. — 
If  the  purchaser  pays  his  bid  price  in  cash,  or  credits  the  amount  of 
his  bid  upon  the  judgment  of  sale,  he  shall  be  entitled  to  be  put  into 
possession  of  the  property  by  order  of  court  and  to  receive  the  rents 
and  profits  therefrom;  otherwise  the  defendant  shall  remain  in  pos- 
session of  the  property  pending  the  redemption  period.  But  the 
court  shall,  pending  redemption,  have  power  to  restrain  by  injunction 
the  commission  of  waste  upon  the  property  at  the  suit  of  any  inter 
ested  party. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  109 

Sec.  485.  Rights  of  purchaser  after  lapse  of  redemption  period. — 
At  the  expiration  of  the  period  for  redemption  allowed  under  the 
previous  section  the  purchaser,  his  executors,  heirs,  or  assigns,  may 
file  a  petition  in  the  cause  in  which  the  property  was  sold,  making  a 
part  thereof  the  certificate  of  sale,  and  demand  the  execution  of  a 
deed  by  the  marshal,  conveying  the  defendant's  entire  interest  in  the 
property  sold.  If  it  appear  to  the  court  that  the  property  was  sold 
for  not  less  than  three-fourths  of  its  market  value,  to  ascertain  the 
truth  of  which  the  court,  on  its  own  motion,  or  on  the  application  of 
the  defendant,  his  executors,  or  heirs,  or  any  judgment  creditor  may 
appoint  two  appraisers  who  shall  file  with  the  court  within  a  specified 
time  a  sworn  report  estimating  the  actual  value  of  the  real  estate  sold 
under  execution,  the  court  shall  order  the  deed  to  be  made  upon  the 
payment  of  the  bid  price  and  interest,  if  not  already  paid.  If  it 
appear  to  the  court  that  the  property  was  sold  for  less  than  three- 
fourths  of  its  market  value,  or  that  for  any  other  cause  an  injustice 
has  been  done  the  defendant,  the  court  may  order  a  resale  of  the 
property  under  such  conditions  with  respect  to  advertising,  and  de- 
ferred payments  not  exceeding  one  year,  as  to  the  court  seems  equita- 
ble. There  shall  be  no  further  right  of  redemption  in  the  property 
resold.  If  the  price  at  which  the  property  resells  shall  not  exceed 
the  price  paid  at  the  first  sale,  together  with  interest,  costs,  and  any 
taxes  or  assessments  that  may  have  been  paid  by  the  holder  of  the 
original  certificate  of  purchase,  a  deed  for  the  property  shall  be  or- 
dered by  the  court  to  be  made  to  the  original  purchaser.  If  the  prop- 
erty brings  more  than  such  amount,  and  the  sale  has  been  fairly  con- 
ducted, it  shall  be  confirmed,  and  the  court  shall  order  a  deed  to  be 
executed  by  the  marshal,  upon  the  payment  of  the  last  purchase  price 
with  interest,  to  the  purchaser  at  the  resale,  his  heirs,  executors,  or 
assigns,  and  the  purchase  money  shall  be  distributed  as  justice  re- 
quires. 

Sec  486.  Deed  prima  facie  evidence  of  regularity  of  sale. — Any 
deed  which  has  been  heretofore,  or  which  may  hereafter  be  so  ex- 
ecuted, or  a  certified  copy  of  the  record  thereof,  shall  be  prima  facie 
evidence  that  the  provisions  of  the  law  in  relation  to  the  sale  of  the 
property  for  which  it  is  or  may  be  given  were  complied  with:  and  in 
case  of  the  loss  or  destruction  of  the  record  of  the  judgment  or  decree, 
or  of  the  execution  or  levy  thereon  such  deed  or  certified  copy  of  the 
record  thereof  shall  be  prima  facie  evidence  of  the  recovery  and  ex- 
istence of  the  judgment  or  decree  and  issuing  and  levy  of  the 
execution  as  therein  recited. 

Sec  487.  Perfecting  execution  lien  in  another  circuit. — When   a 

writ  of  execution  is  issued  from  a  court  of  a  circuit  to  a  marshal  or 

other  officer  of  another  circuit,  and  levied  upon  any  real  estate  in 

the  latter  circuit,  the  officer  making  such  levy  shall  make  a  certificate 

803a— 07— m 8 


110  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

thereof  and  file  the  same  in  the  office  of  the  registrar  of  land  titles 
in  said  circuit.  Until  the  filing  of  such  certificate  such  levy  shall 
not  take  effect,  as  against  creditors  and  bona  fide  purchasers,  with- 
out  notice. 

Sec.  488.  Same. — The  certificate  may  be  substantially  in  the  fol- 
lowing form: 


Circuit  of  the  Canal  Zone,  ss: 

I  (here  state  the  name  of  the  officer  and  the  title  of  his  office)  do 
hereby  certify  that  by  virtue  of  an  execution  to  me  directed,  from 

the  court  of  ,  in  favor  of  , 

against  ,  dated  the day  of ,  19 — ,  I  did,  on 

the  day  of  ,   19 — ,  levy  upon  the   following  premises. 

(Here  describe  the  premises.) 

(Signature.) 

Sec  489.  Same. — Such  certificate  shall  be  recorded  by  the  registrar 
of  land  titles  of  said  circuit,  in  a  book  to  be  kept  for  that  purpose. 
The  fee  for  recording  such  certificate  shall  be  collected  as  other  costs. 

Sec.  490.  Death  of  plaintiff,  enforcing  judgment. — The  collection 
of  a  judgment  or  decree  of  a  court  of  record  shall  not  be  delayed  or 
hindered,  or  the  lien  created  by  law  abate,  by  reason  of  the  death  of 
any  person  in  whose  favor  such  judgment  or  decree  shall  be;  but  the 
executor  or  administrator,  the  administrator  de  bonis  non,  or  with 
the  will  annexed  may  cause  his  letters  testamentary  or  of  adminis- 
tration to  be  recorded  in  such  court,  after  which  execution  may  issue 
and  proceeding  be  had  in  the  name  of  the  executor  or  administrator 
as  such,  in  the  same  manner  as  if  the  judgment  or  decree  had  been 
recovered  in  his  name. 

Sec  491.  Rights  of  plaintiffs  executors,  etc. — When  it  is  necessary, 
in  order  to  secure  the  collection  of  a  judgment  or  decree  belonging 
to  any  estate,  it  shall  be  the  duty  of  the  executor  or  administrator  to 
bid  for  and  become  the  purchaser  of  real  estate  at  the  sale  thereof 
by  the  marshal  or  other  officer.  The  premises  so  purchased  shall 
be  assets  in  his  hands,  and  may  be  again  sold  by  him,  with  the 
approval  of  the  court  appointing  him,  and  the  moneys  arising  from 
such  sale  shall  be  accounted  for  and  paid  over  as  other  moneys  in 
his  hands. 

Sec  492.  Death  of  defendant,  enforcing  judgment. — When  a  per- 
son shall  die  after  the  rendition  of  a  judgment  or  decree  for  the 
payment  of  money  against  him  is  obtained  in  a  court  of  record, 
execution  may  issue  against  the  real  estate  of  such  deceased  person, 
or  sale  may  be  made  under  such  decree  without  reviving  the  judgment 
or  decree  against  his  heirs  or  legal  representatives:  Provided,  That 
no  execution  shall  issue  or  sale  be  made  until  after  the  expiration  of 
twelve  months  from  the  death  of  such  deceased  person,  nor  shall  any 
sale  be  had  on  any  such  execution  or  decree  until  the  person  in  whose 


CODE    OF    CIVIL.   PROCEDURE    OF    THE    CANAL,   ZONE.  Ill 

favor  the  judgment  or  decree  if  sought  to  be  enforced  shall  give  to 
the  executor  or  administrator,  or  if  there  be  neither,  the  heirs  of  the 
deceased,  at  least  two  months'  notice  of  the  existence  of  such  judg- 
ment or  decree,  before  issuing  execution  or  proceeding  to  sell,  which 
notice  shall  be  in  writing  when  the  parties  required  to  be  notified 
reside  or  may  be  found  within  the  Zone,  and  their  place  of  residence 
known,  otherwise  publication  notice  shall  be  given  as  in  this  Code 
provided. 

Sec.  41)3.  Property  subject  to  execution. — All  goods  and  chattels, 
real  and  personal,  including  money,  majr  be  taken  and  sold  on  execu- 
tion, except  as  otherwise  provided  by  law:  Provided,  That  when  any 
officer  shall  levy  an  execution  on  live  stock,  or  other  personal  property 
and  the  same  shall  not  be  immediately  replevied  or  restored  to  the 
debtor  such  officer  shall  provide  for  the  proper  care  and  storage  of 
such  personal  property  and  shall  provide  sufficient  sustenance  for  the 
support  of  such  live  stock  until  the  same  shall  be  replevied,  sold  or 
discharged  from  such  execution.  Said  officer  shall  receive  a  reason- 
able compensation,  therefor,  to  be  ascertained  and  determined  by  the 
court  out  of  which  the  writ  issued,  or  any  judge  thereof  in  vacation, 
to  be  advanced  to  him,  from  time  to  time,  by  the  plaintiff  in  the 
execution,  and  the  amount  of  such  compensation  shall  be  collectible 
as  a  part  of  the  costs  in  the  case. 

Sec.  494.  Officer  may  take  indemnity  bond  in  doubt  fid  cases. — If 
there  is  reasonable  doubt  as  to  the  ownership  of  the  goods,  or  as  to 
their  liability  to  be  taken  on  execution,  the  officer  may  require  suffi- 
cient security  to  indemnify  him  for  taking  them. 

Sec  495.  Delivery  bond. — AVhen  personal  property  is  levied  upon, 
or  about  to  be  levied  upon,  if  the  defendant  will  give  bond  with 
sufficient  security,  to  be  approved  by  the  officer,  payable  to  the  credi- 
tor, in  double  the  amount  of  the  execution  conditioned  to  deliver  the 
property  levied  upon  uninjured  at  the  time  and  place  where  the  same 
is  to  be  sold,  which  shall  be  named  in  the  condition,  the  marshal  may 
allow  the  property  to  remain  with  the  defendant. 

Sec  496.  Same.- — If  the  property  is  not  delivered  according  to  the 
condition  of  the  bond,  the  officer  having  such  execution  may  proceed 
to  execute  the  same  in  the  same  manner  as  if  no  levy  had  been  made. 

Sec  497.  Same. — If  the  officer  does  not  obtain  satisfaction  of  the 
execution,  he  shall  return  the  bond  with  such  execution,  and  the 
creditor  shall  be  allowed  to  recover  thereon  the  amount  of  his  judg- 
ment, with  interest  and  cost,  or  if  the  value  of  the  property  so  levied 
upon  shall  be  shown  by  the  defendant  to  be  less  than  such  judgment 
and  cost,  the  value  thereof,  with  ten  per  cent  damages  for  the  delay. 

Sec  498.  Same. — No  second  delivery  bond  shall  be  taken  in  behalf 
of  a  defendant  so  failing  to  comply  with  the  first,  nor  shall  a  delivery 
bond  be  taken  of  his  surety  without  the  consent  of  the  creditor. 


112  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  499.  Advertisement  of  personal  property  to  be  sold. — Before 
any  goods  and  chattels  shall  be  sold  by  virtue  of  any  execution,  at 
least  ten  days'  previous  notice  of  such  sale  shall  be  given  by  posting 
notices  thereof  in  three  of  the  most  public  places  in  the  circuit  where 
such  sale  is  to  be,  specifying  the  time  when  and  place  where  the  same 
are  to  be  sold. 

Sec  500.  Postponement  of  sale. — The  officer  may  postpone  such 
sale  from  time  to  time,  not  exceeding  ten  days  at  one  time,  whenever, 
for  want  of  bidders  or  other  good  cause,  he  shall  think  it  for  the 
interest  of  the  parties  concerned.  Notice  of  such  postponement  may 
be  given  at  the  time  and  place  fixed  for  the  sale,  or  by  posting  notices 
as  hereinbefore  provided,  but  if  the  postponement  exceed  one  day  he 
shall  post  notices  thereof. 

Sec  501.  Return  of  execution  against  personal  property. — The 
officer  making  such  sale,  shall,  in  his  return  of  the  execution,  par- 
ticularly describe  the  goods  sold,  and  the  sum  for  which  each  article 
was  sold ;  and  if  he  is  guilty  of  fraud  in  the  sale  or  return,  he  shall 
be  liable  in  any  proper  action  at  the  suit  of  the  party  injured,  for 
five  times  the  amount  of  the  actual  damage  sustained  by  reason  of 
such  fraud. 

Sec  502.  Levying  execution  from  district  court  on.  real  estate. — No 
execution  issued  by  a  district  court  shall  be  levied  upon  real  estate, 
nor  shall  any  redemptions  be  made  under  any  judgment  rendered  by 
a  district  court,  except  when  the  same  shall  be  certified  into  a  court 
of  record,  as  provided  by  law. 

Sec  503.  Fraudulent  withholding  of  property  from  execution. — 
Where  it  appears  by  affidavit  of  the  judgment  creditor  that  the  debtor 
fraudulently  conceals  any  specified  estates,  goods,  chattels,  or  tene- 
ments nonexempt  from  execution  in  order  to  avoid  a  levy  upon  the 
same,  or  that  he  fraudulently  refuses  to  surrender  the  same,  or  that 
the  debtor,  in  anticipation  of  the  levy  of  an  execution,  has  fraudu- 
lently removed  or  concealed  his  property,  the  court  from  which  the 
execution  issues  may  summon  the  debtor  to  appear  before  it  and  deal 
with  the  debtor  as  in  the  case  of  contempt  of  court. 

Sec  504.  What  property  of  married  woman  exempt  from  execution 
against  husband. — All  real  and  personal  estate  belonging  to  any  mar- 
ried woman  at  the  time  of  her  marriage,  or  subsequently  acquired  by 
her  with  her  own  earnings  or  propert}*,  or  conveyed  to  her  by  any 
third  party,  and  all  the  rents,  issues  and  profits  thereof,  and  all  com- 
pensation due  and  owing  for  her  personal  services,  is  exempt  from 
execution  against  her  husband. 

Sec  505.  Property  liable  to  execution. — All  goods,  chattels,  moneys, 
and  other  property,  both  real  and  personal,  or  any  interest  therein 
of  the  judgment  debtor,  not  exempt  by  law,  and  all  property  and 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  113 

rights  of  property  seized  and  held  under  attachment  in  the  action, 
shall  be  liable  to  execution.  Shares  and  interest  in  any  corporation 
or  company,  and  debts,  credits,  and  all  other  property,  both  real  and 
personal,  or  any  interests  in  either  real  or  personal  property,  and  all 
other  property  not  capable  of  manual  delivery,  may  be  attached  on 
execution,  in  like  manner  as  upon  writs  of  attachment. 

Sec.  506.  Exemptions  from  executions. — The  following  property 
shall  be  exempt  from  attachment  and  execution,  except  as  herein 
otherwise  provided: 

1.  The  debtor's  homestead,  in  which  he  resides,  and  land  neces- 
sarily used  in  connection  therewith,  both  not  exceeding  in  value  two 
hundred  dollars; 

2.  Tools  and  implements  necessarily  used  by  him  in  his  trade  of 
employment ; 

3.  Two  domestic  animals  such  as  the  debtor  may  select,  not  exceed- 
ing one  hundred  dollars  in  value,  and  necessarily  used  by  him  in  his 
ordinary  occupation ; 

4.  His  necessary  clothing,  and  that  of  all  his  family ; 

5.  Household  furniture  and  utensils  necessary  for  house  keeping 
and  used  for  that  purpose  by  the  debtor,  such  as  the  debtor  may 
select,  of  a  value  not  exceeding  fifty  dollars; 

6.  Provisions  actualty  provided  for  individual  or  family  use  suffi- 
cient for  three  months ; 

7.  The  professional  libraries  of  lawyers,  judges,  clergymen,  doctors, 
school  teachers,  and  music  teachers,  not  exceeding  two  hundred  and 
fifty  dollars  in  value ; 

8.  One  fishing  boat  and  net,  not  exceeding  the  total  value  of 
twenty-five  dollars,  the  property  of  any  fisherman  by  the  lawful  use 
of  which  he  earns  a  livelihood ; 

9.  Lettered  gravestones. 

But  no  articles  or  species  of  property  mentioned  in  this  section 
shall  be  exempt  from  execution  issued  upon  a  judgment  recovered 
for  its  price  or  upon  a  judgment  of  foreclosure  of  a  mortgage  thereon. 
All  property  other  than  as  hereinbefore  stated  is  subject  to  execu- 
tion. 

Sec.  507.  Claims  by  third  persons  to  property  levied  on. — Property 
levied  on  can  be  claimed  by  a  third  person  as  his  property,  by  a 
written  claim,  verified  by  the  oath  of  such  claimant,  setting  out  his 
title  thereto,  his  right  to  possession,  stating  the  grounds  of  such  title, 
and  served  upon  the  marshal,  or  his  deputy,  or  officer  making  the  levy. 
The  officer  in  such  case  is  not  bound  to  keep  the  property,  unless  the 
plaintiff,  or  the  person  in  whose  favor  the  writ  of  execution  runs, 
on  demand,  indemnify  the  officer  against  such  claim  b}^  an  obligation, 


114  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

signed  by  the  plaintiff,  with  good  and  sufficient  surety,  and  no  claim 
to  such  property  shall  be  valid  against  the  officer,  or  shall  be  received 
or  be  notice  of  any  rights  against  him  unless  made  as  herein  pro- 
vided; but  nothing  herein  contained  shall  prevent  such  third  person 
from  vindicating  his  claim  to  the  property  by  any  proper  action. 

Sec.  508.  Claim  by  debtor  that  property  is  exempt  from  execu- 
tion.— The  defendant  by  a  similar  proceeding  may  also  claim  that  the 
property  is  exempt  from  execution,  and  the  officer  shall  not  be  com- 
pelled to  take  it  unless  the  plaintiff  indemnify  him  as  provided  in  the 
last  section. 

Sec  509.  Executions  between  same  parties. — Executions  between 
the  same  parties,  issued  in  their  individual  rights,  may  be  set  off 
against  each  other,  under  direction  of  the  court. 

Sec  510.  Several  executions  against  same  property. — Where  sev- 
eral executions  are  levied  upon  property,  the  same  shall  be  sold  under 
the  first  execution,  and  the  proceeds  of  the  sale  shall  be  devoted  to 
the  discharge  of  the  several  executions  in  the  order  in  wThich  they 
have  become  liens. 

Sec  511.  Execution  against  several  made  out  of  the  property  of 
one. — When  property  liable  to  an  execution  against  several  persons  is 
sold  thereon,  and  more  than  a  due  proportion  of  the  judgment  is  satis- 
fied out  of  the  proceeds  of  the  sale  of  the  property  of  one  of  them,  or 
one  of  them  pays,  without  a  sale,  more  than  his  proportion  he  may 
compel  a  contribution  from  the  others;  and  when  a  judgment  is 
against  several,  and  is  upon  an  obligation  of  one  of  them,  as  security 
for  another,  and  the  surety  pays  the  amount,  or  any  part  thereof, 
either  by  sale  of  his  property  or  before  sale,  he  may  compel  repay- 
ment from  the  principal. 

Sec  512.  Who  may  execute  the  officer's  deed. — In  case  of  the  death 
of  the  officer  making  the  sale,  before  the  expiration  of  the  period  of 
redemption,  the  deed  may  be  executed  by  his  successor  in  office.  In 
case  the  officer's  term  of  office  expires  before  the  termination  of  the 
period  of  redemption,  he  may  execute  the  deed  at  the  expiration 
of  such  period  notwithstanding  he  has  ceased  to  remain  in  office,  and 
such  deed  shall  have  the  same  validity  as  though  he  had  continued 
in  the  office. 

Chapter  XXIII. 

PROCEEDINGS.  SUPPLEMENTARY    TO    THE    EXECUTION. 

Sec  513.  Right  of  judgment  creditor  to  examine  debtor  when  exe- 
cution returned  unsatisfied. — When  an  execution  against  property 
of  a  judgment  debtor,  or  of  any  one  of  several  debtors  in  the  same 
judgment,  issued  to  the  marshal  or  his  deputy,  for  the  circuit  where 
the  defendant  resides,  or,  if  he  do  not  reside  in  the  circuit,  to  the  mar- 
shal or  his  deputy  of  the  circuit  where  the  judgment  was  rendered,  is 


CODE    OF    CIVIL    PEOCEDUKE    OF    THE    CANAL    ZONE.  115 

returned  unsatisfied,  in  whole  or  in  part,  the  judgment  creditor,  at 
any  time  after  such  return  is  made,  shall  be  entitled  to  an  order  from 
a  judge  of  the  Circuit  Court  of  the  circuit  wherein  the  judgment  was 
rendered,  requiring  such  judgment  debtor  to  appear  and  answer 
concerning  property  before  such  judge,  or  a  referee  appointed  by  him, 
at  a  time  and  place  specified  in  the  order;  but  no  judgment  debtor 
must  be  required  to  attend  before  a  judge  or  referee  out  of  the  cir- 
cuit in  which  he  resides  or  is  found. 

Sec.  514.  Method  of  obtaining  such  examination. — After  the 
issuing  of  execution  against  property  and  upon  proof,  b}^  affidavit 
of  a  party  or  otherwise,  to  the  satisfaction  of  the  judge,  that  any 
judgment  debtor  has  property  which  he  unjustly  refuses  to  apply 
towards  the  satisfaction  of  the  judgment,  such  judge  may,  by  an 
order,  require  the  judgment  debtor  to  appear  at  a  specified  time 
and  place,  before  such  judge,  or  a  referee  appointed  by  him,  to 
answer  concerning  the  same;  and  such  proceedings  may  thereupon 
be  had  for  the  application  of  the  property  of  the  judgment  debtor 
toward  the  satisfaction  of  the  judgment  as  hereinafter  prescribed. 
Instead  of  the  order  requiring  the  attendance  of  the  judgment 
debtor,  the  judge  may,  upon  affidavit  of  the  judgment  creditor,  his 
agent  or  lawyer,  if  it  appear  to  him  that  there  is  danger  of  the 
debtor  absconding,  order  the  officer  to  arrest  the  debtor,  and  bring 
him  before  such  judge.  Upon  being  brought  before  the  judge,  he 
may  be  ordered  to  enter  into  an  undertaking,  with  sufficient  surety, 
that  he  will  attend  from  time  to  time  before  the  judge  or  referee, 
as  may  be  directed,  during  the  pendency  of  the  proceedings,  and 
until  final  termination  thereof,  and  will  not  in  the  meantime  dispose 
of  any  portion  of  his  property  not  exempt  from  execution.  In 
default  of  entering  into  such  undertaking,  he  may  be  committed  to 
prison  as  for  contempt. 

Sec  515.  Examination  of  debtor  of  judgment  debtor,  etc. — After 
the  return  of  an  execution  against  the  property  of  a  judgment  debtor, 
or  of  one  of  the  several  debtors  in  the  same  judgment,  unsatisfied 
in  whole  or  in  part,  and  upon  proof,  in  writing,  and  by  affidavit 
or  otherwise,  to  the  satisfaction  of  the  judge,  that  a  person  or  cor- 
poration has  property  of  such  judgment  debtor  or  is  indebted  to 
him,  the  judge  may,  by  an  order,  require  such  person  or  corporation, 
or  any  officer  or  member  of  the  corporation  to  appear  at  a  specified 
time  and  place,  within  the  circuit  in  which  such  person  or  corpora- 
tion is  served  with  the  order,  and  answer  concerning  the  same;  the 
service  of  the  order  shall  bind  the  property  in  the  possession  or 
under  the  control  of  such  person  or  corporation  from  the  time  of 
service;  and  the  person  or  corporation  so  served  with  the  order 
shall  be  liable  to  the  judgment  creditor  for  all  property,  money, 
and  credits  in  his  hands  belonging  to  the  judgment  debtor,  or  due 


IK)  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

to  him  from  such  person  or  corporation,  from  the  time  of  service; 
and  the  person  or  corporation  so  served  with  the  order  shall  be  liable 
to  the  judgment  creditor  for  all  property,  money,  and  credits  in  his 
hands  belonging  to  the  judgment  debtor,  or  due  to  him  from  such 
person  or  corporation,  from  the  time  of  service  and  the  judge  may 
also  require  notice  of  such  proceeding  to  be  given  to  any  party  to 
the  action,  in  such  manner  as  may  seem  to  him  proper. 

Sec.  516.  Reference  by  a  judge. — The  judge  may,  in  his  discre- 
tion, order  a  reference  to  a  referee  agreed  upon  or  appointed  by  him 
to  report  the  evidence  or  the  facts. 

Sec  517.  Proceedings  to  compel  attendance. — A  party  or  witness 
maj7  be  compelled  by  an  order  of  the  judge,  or  a  subpoena,  to  attend 
before  a  judge  or  referee  to  testify.  If  a  person,  party,  or  witness 
disobeys  an  order  of  tlie  judge,  court,  or  referee  duly  served,  he  may 
be  punished  as  for  contempt;  and  such  referee  may  at  his  discretion, 
report  the  case  to  the  court  or  judge,  and  such  court  or  judge  may 
punish  for  contempt  the  persons  or  party  or  witness  so  disobeying. 

Sec  518.  Proceedings  may  be  continued. — The  judge  or  referee 
acting  under  the  provisions  of  this  chapter,  may  continue  his  pro- 
ceedings from  time  to  time,  until  they  are  completed. 

Sec  519.  Proceedings  before  a  referee. — If  the  examination  is  be- 
fore a  referee,  it  must  be  taken  by  the  referee  in  writing  and  certified 
to  the  judge.  All  examinations  and  answers  before  a  judge  or  referee 
must  be  on  oath.  When  a  corporation  answers,  the  answer  must 
be  on  the  oath  of  an  officer  thereof. 

Sec  520.  Debtor  may  pay  execution  against  creditor. — After  the 
issue  of  an  execution  against  property,  a  person  indebted  to  the  judg- 
ment debtor  may  pay  to  the  officer  holding  the  execution  the  amount 
of  his  debt,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the 
execution;  the  officer's  receipt  shall  be  a  sufficient  discharge  for  the 
amount  so  paid,  or  directed  to  be  credited  by  the  judgment  creditor 
on  the  execution. 

Sec  521.  Judge  may  order  property  to  be  applied  on  execution. — 
The  judge  may  order  any  property  of  the  judgment  debtor  or  money 
due  to  him,  not  exempt  by  law,  in  the  hands  either  of  himself  or  the 
person,  or  the  corporation,  to  be  applied  toward  the  satisfaction  of 
the  judgment;  but  the  earnings  of  the  debtor  for  his  personal  services 
at  any  time  within  one  month  preceding  the  order  can  not  be  applied 
when  it  is  made  to  appear  by  the  affidavit  of  the  debtor,  or  other- 
wise, that  such  earnings  are  necessary  for  the  use  of  a  family  sup- 
ported wholly  or  in  part  by  his  labor. 

Sec  522.  Judge  may  appoint  receiver  and  prohibit  transfers,  and 
so  forth. — The  judge  may,  by  order,  appoint  the  marshal,  or  his 
deputy  of  the  proper  circuit,  or  other  suitable  person,  a  receiver  of 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  117 

the  property  of  the  judgment  debtor;  and  he  may  also,  by  order, 
forbid  a  transfer  or  other  disposition  of,  or  any  interference  with,  the 
property  of  the  judgment  debtor  not  exempt  by  law. 

Sec.  523.  Liability  of  officer  on  official  bond. — If  the  marshal,  or 
his  deputy,  be  appointed  receiver,  he  and  his  sureties  shall  be  liable 
on  his  official  bond  as  such  receiver;  but,  if  another  person  be  ap- 
pointed, he  shall  give  an  undertaking  or  bond  as  in  other  cases  of 
receivers. 

Sec  524.  Proceedings  when  the  judgment  debtor  has  interest  in 
real  estate  as  mortgagee  or  mortgagor,  or  otherwise.— If  it  appears 
that  the  judgment  debtor  has  an  interest  in  real  estate,  in  the  circuit 
in  which  proceedings  are  had,  as  mortgagee  or  mortgagor,  or  other- 
wise, and  his  interest  can  be  ascertained  as  between  himself  and  the 
person  holding  the  legal  estate,  or  the  person  having  a  lien  on  or 
interest  in  the  same,  without  controversy  as  to  the  interest  of  such 
person  holding  such  legal  estate  or  interest  therein,  or  lien  on  the 
same,  the  receiver  may  be  ordered  to  sell  and  convey  such  real  estate 
or  the  interest  of  the  debtor  therein;  such  sale  shall  be  conducted  in 
all  respects  in  the  same  manner  as  is  provided  for  the  sale  of  real 
estate  upon  execution;  and  the  proceedings  of  such  sale  shall,  before 
the  execution  of  the  deed,  be  approved  by  the  court  in  which  the 
judgment  was  rendered. 

Sec  525.  Proceedings  when  indebtedness  denied  or  another  claims 
the  property. — If  it  appears  that  a  person  or  corporation,  alleged 
to  have  property  of  the  judgment  debtor  or  to  be  indebted  to  him, 
claims  an  interest  in  the  property  adverse  to  him  or  denies  the  debt, 
the  court  or  judge  may  authorize,  by  an  order  made  to  that  effect, 
the  judgment  creditor  to  institute  an  action  against  such  person  or 
corporation  for  the  recovery  of  such  interest  or  debt,  and  the  court 
or  judge  may,  by  order,  forbid  a  transfer  or  other  disposition  of 
such  interest  or  debt  until  an  action  can  be  commenced  and  prose- 
cuted to  judgment,  and  may  punish  disobedience  of  such  order  as 
for  contempt.  Such  order  may  be  modified  or  vacated  by  the  judge 
granting  the  same,  or  by  the  court  in  which  the  action  is  brought 
at  any  time,  upon  such  terms  as  may  be  just. 

Chapter  XXIV. 

COSTS   IN    THE    SEVERAL    COURTS. 

Sec  526.  Costs  ordinarily  follow  result  of  suit. — Costs  shall  ordi- 
narily be  allowed  to  the  prevailing  party  as  a  matter  of  course, 
but  the  court  shall  have  power,  for  special  reasons,  to  adjudge  that 
either  party  shall  pay  the  costs  of  an  action,  or  that  the  same  be 
divided,  as  may  be  equitable. 


118  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  527.  When  action  dismissed  for  want  of  jurisdiction. — If  an 
action  is  dismissed  for  want  of  jurisdiction,  courts  nevertheless  shall 
have  power  to  render  judgment  for  costs  as  justice  may  require. 

Sec  528.  Lawyer's  fees  as  costs. — No  lawyer's  fees  shall  be  taxed 
as  costs  against  the  adverse  party,  except  as  herein  specially  pro- 
vided. But  this  section  shall  have  no  relation  to  the  fees  to  be. 
charged  by  a  lawyer  as  against  his  client. 

Sec  529.  Restriction  of  costs. — If  the  plaintiff  in  any  action  shall 
recover  a  sum  not  exceeding  five  dollars  as  debt  or  damages,  he 
shall  recover  no  more  costs  than  debt  or  damages,  unless  the  court 
shall  certify  that  the  action  involved  a  substantial  and  important 
right  to  the  plaintiff,  in  which  case  full  costs  may  be  allowed,  not- 
withstanding the  debt  or  damages  do  not  exceed  five  dollars. 

Sec  530.  Costs  in  District  Courts. — In  an  action  pending  before 
a  district  judge,  the  plaintiff  may  recover  the  following  costs,  and 
no  others: 

For  the  complaint,  fifty  cents. 

For  the  attendance  of  himself,  or  his  counsel,  or  both,  on  the  day 
of  trial,  fifty  cents. 

For  each  additional  day's  attendance  required  in  the  actual  trial 
of  the  case,  twenty-five  cents. 

For  each  witness  produced  by  him,  for  each  day's  necessary  at- 
tendance at  the  trial,  the  witness'  lawful  fees. 

For  each  deposition  lawfully  taken  by  him  and  produced  in  evi- 
dence, two  dollars  and  fifty  cents. 

For  original  documents,  deeds,  or  papers  of  any  kind  produced  by 
him,  nothing. 

For  official  copies  of  such  documents,  deeds,  or  papers,  the  lawful 
fees  necessarily  paid  for  obtaining  such  copies. 

The  lawful  fees  paid  by  him  for  service  of  the  summons  and  other 
process  in  the  action. 

The  lawful  fees  charged  against  him  by  the  court  in  trying  the 
action. 

If  the  judgment  is  for  the  defendant,  he  may  recover  the  follow- 
ing costs,  and  no  others : 

For  the  attendance  of  himself,  or  his  counsel,  or  both,  on  the  day 
of  trial,  fifty  cents. 

For  each  additional  day's  attendance  required  in  the  actual  trial 
of  the  case,  fifty  cents. 

For  each  witness  produced  by  him,  for  each  day's  necessary  attend- 
ance at  the  trial,  the  witness'  lawful  fees. 

For  each  deposition  lawfully  taken  by  him  and  produced  in  evi- 
dence, two  dollars  and  fifty  cents. 

For  original  documents,  deeds,  or  papers  of  any  kind  produced  by 

him,  nothing. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  119 

For  official  copies  of  such  deeds  or  papers,  the  lawful  fees  neces- 
sarily paid  for  obtaining  such  copies. 

The  lawful  fees  paid  by  him  for  service  of  any  process  in  the 
action. 

Sec.  531.  Costs  in  Circuit  Court. — In  an  action  pending  in  a  Cir- 
cuit Court,  the  prevailing  party  may  recover  the  following  costs  and 
no  others : 

For  the  complaint  or  answer,  four  dollars. 

For  his  own  attendance  and  that  of  his  lawyers,  down  to  and 
including  final  judgment,  ten  dollars. 

For  each  witness  necessarily  produced  by  him,  for  each  day's  nec- 
essary attendance  of  such  witness  at  the  trial  the  witness'  lawful  fees. 

For  each  deposition  lawfully  taken  by  him,  and  produced  in 
evidence,  two  dollars  and  fifty  cents. 

For  original  documents,  deeds,  or  papers  of  any  kind  produced  by 
him,  nothing. 

For  official  copies  of  such  documents,  deeds,  or  papers,  the  lawful 
fees  necessarily  paid  for  obtaining  such  copies. 

The  lawful  fees  paid  by  him  for  the  service  of  any  process  in  the 
action,  and  all  lawful  clerk's  fees  paid  by  him. 

Sec  532.  Costs  in  Supreme  Court. — In  an  action  pending  in  the 
Supreme  Court,  the  prevailing  party  may  recover  the  following  costs 
and  no  others : 

For  his  own  attendance,  and  that  of  his  lawyers,  down  to  and 
including  final  judgment,  twenty  dollars. 

For  official  copies  of  bills  of  exception  and  the  printing  thereof, 
and  all  other  copies  required  by  rules  of  court,  the  sum  actually  paid 
for  the  same,  within  the  limits  to  be  established  by  rules  of  the 
Supreme  Court. 

All  lawful  fees  charged  against  him  by  the  clerk  of  a  Supreme 
Court,  in  entering  and  docketing  the  action  and  recording  the  judg- 
ment therein  and  for  the  issuing  of  all  process. 

No  allowance  shall  be  made  to  the  prevailing  party  in  the  Supreme 
Court  for  the  brief  or  written  or  printed  arguments  of  his  lawyer, 
or  copies  thereof,  aside  from  the  twenty  dollars  above  stated. 

If  testimony  is  received  in  the  Supreme  Court,  not  taken  in  an- 
other court  and  transmitted  thereto,  the  prevailing  party  shall  be 
allowed  in  the  Supreme  Court  the  same  costs  for  witness  fees,  depo- 
sitions, and  process  and  service  thereof  as  he  would  have  been  allowed 
for  such  items  had  the  testimony  been  introduced  in  a  Circuit  Court. 

The  lawful  fees  of  referees  and  commissioners  in  an  action  may 
also  be  taxed  against  the  defeated  party,  or  a  portion,  as  justice 
requires. 


120  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

Chapter  XXV. 

PROCEEDINGS  IN  SUPREME  COURT. 

General  procedure  of  the  Supreme  Court  and  procedure  on  hills  of 

exception. 

Sec.  533.  General  procedure  in  tic-  Supreme  Court. — The  Supreme 
Court  may,  in  the  exercise  of  its  appellate  jurisdiction,  affirm,  reverse, 
or  modify  any  final  judgment,  order,  or  decree  of  a  Circuit  Court, 
regularly  entered  in  the  Supreme  Court  by  bill  of  exceptions,  ap- 
peals, or  writ  of  error,  and  may  direct  the  proper  judgment,  order,  or 
decree  to  be  entered,  or  direct  a  new  trial,  or  further  proceedings  to 
be  had,  and  if  a  new  trial  shall  be  granted,  the  court  shall  pass  upon 
and  determine  all  the  questions  of  law  involved  in  the  case  presented 
by  such  bill  of  exceptions  and  necessary  for  the  final  determination 
of  the  action. 

Sec  534.  Hearings  confined  to  matters  of  law,  with  certain  excep- 
tions.— In  hearings  upon  appeals,  in  civil  actions  and  special  pro- 
ceedings, the  Supreme  Court  shall  not  review  the  evidence  taken  in 
the  court  below,  nor  re-try  the  questions  of  fact,  except  as  in  this  sec- 
tion hereinafter  provided ;  but  shall  determine  only  questions  of  law 
raised  by  the  bill  of  exceptions.  But  the  Supreme  Court  may  review 
the  evidence  taken  in  the  court  below,  and  affirm,  reverse,  or  modify 
the  judgment  there  rendered,  as  justice  may  require,  in  the  following 
cases : 

1.  If  before  the  final  determination  of  an  action  pending  in  the 
Supreme  Court  on  bill  of  exceptions,  new  and  material  evidence  be 
discovered  by  either  party,  which  could  not  have  been  discovered  be- 
fore the  trial  in  the  court  below  by  the  exercise  of  due  diligence,  and 
which  is  of  such  a  character  as  probably  to  change  the  result,  the 
Supreme  Court  may  receive  and  consider  such  new  evidence,  together 
with  that  adduced  on  the  trial  below,  and  may  grant  or  refuse  a  new 
trial,  or  render  such  other  judgment  as  ought,  in  view  of  the  whole 
case,  to  be  rendered,  upon  such  terms  as  it  may  deem  just.  The  party 
seeking  a  new  trial,  or  the  reversal  of  the  judgment  on  the  ground  of 
newty  discovered  evidence,  may  petition  the  Supreme  Court  for  such 
new  trial,  and  shall  attach  to  the  petition  affidavits  shoAving  the  facts 
entitling  him  to  a  new  trial  and  newly  discovered  evidence.  Upon 
the  filing  of  such  petition  in  the  Supreme  Court,  the  court  shall,  on 
notice  to  both  parties,  make  such  order  as  to  taking  further  testimony 
by  each  party,  upon  the  petition  either  orally  or  in  court,  or  by  depo- 
sitions, upon  notice  as  it  may  deem  just.  The  petition,  with  the  evi- 
dence, shall  be  heard  at  the  same  time  as  the  bill  of  exceptions; 

2.  If  the  excepting  party  file  a  motion  in  the  Circuit  Court  for  a 
new  trial,  upon  the  ground  that  the  findings  of  facts  are  plainly  and 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  121 

manifestly  against  the  weight  of  evidence,  and  the  judge  overrule 
paid  motion,  and  due  exception  be  taken  to  his  order  overruling  the 
same,  the  Supreme  Court  may  review  the  evidence  and  make  such 
finding  upon  the  facts,  and  render  such  final  judgment,  as  justice  and 
equity  require.  But,  if  the  Supreme  Court  shall  be  of  the  opinion 
that  this  exception  is  frivolous  and  not  made  in  good  faith,  it  may 
impose  double  or  treble  additional  costs  upon  the  excepting  party 
and  may  order  them  to  be  paid  by  the  counsel  prosecuting  the  bill  of 
exceptions,  if  in  its  opinion  justice  so  requires. 

Sec.  535.  Procedure  on  appeal  from  special  proceedings. — On  ap- 
peal from  special  proceedings  had  before  a  Circuit  Court,  the 
Supreme  Court  shall  determine  the  questions  of  fact  from  the  evi- 
dence certified  from  the  judge  or  court  below,  and  shall  also  decide 
all  questions  of  law  arising  upon  the  appeal.  But,  if  the  appeal 
involves  such  a  number  of  items  of  account  as  to  render  the  re- 
examination of  the  evidence  by  the  Supreme  Court  inconvenient  and 
undul}*  burdensome,  the  court  may  refer  the  accounting  to  a  com- 
missioner to  be  appointed  by  it,  who  shall  be  thoroughly  competent 
to  adjust  complicated  accounts.  The  commissioner  shall  have  power 
to  administer  oaths,  and  to  re-examine  all  controverted  items  of  the 
account,  upon  the  testimony  already  taken  and  certified  from  the 
judge  or  court  below,  and  upon  such  further  testimony  as  the  Su- 
preme Court  shall  for  special  reasons  authorize.  He  shall  be  sworn 
to  a  faithful  performance  of  his  duties  as  commissioner  and  shall 
have  power  to  issue  subpoenas  for  witnesses.  He  shall  state  the 
items  of  the  account  as  allowed  or  disallowed,  and  report  to  the  court 
his  findings  of  facts  and  his  allowances  or  disallowances,  and  his 
rulings  upon  all  questions  of  law,  and  shall  return  to  the  court  all 
testimony  taken  by  him.  The  court  shall  thereupon  render,  upon 
notice  and  hearing,  such  judgment  as  justice  requires,  in  view  of  the 
findings  of  the  commissioner  and  of  the  evidence.  The  court  shall 
not  be  bound  by  his  findings,  but  may  review  the  evidence,  or  may 
recommit  the  report  to  the  same  or  another  commissioner  for  further 
findings,  if  justice  so  requires.  The  final  judgment  of  the  Supreme 
Court  in  such  special  proceedings  shall  be  certified  to  the  Circuit 
Court  immediately  upon  its  rendition,  and  shall  be  conclusive. 

Sec  536.  Judge  failing  to  sign  exceptions,  how  compelled. — If 
from  any  cause  the  bill  of  exceptions  is  not  certified  by  the  judge  of 
the  court  below,  without  fault  of  the  party  tendering  the  bill  of 
exceptions,  such  party,  or  his  attorney,  may  apply  at  the  next  term 
of  the  Supreme  Court,  and  on  petition  obtain  from  said  court  a  man- 
damus directed  to  the  judge : 

1.  Such  petition  must  set  out  substantially  the  bill  of  exceptions 
tendered,  and  shall  be  verified  by  oath  by  the  lawyer  as  to  the  truth 


122  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

of  the  bill  of  exceptions  as  tendered  by  the  party  or  his  lawyer  and  as 
to  the  other  facts  stated  thereon; 

2.  Upon  the  filing  of  such  petition,  the  Supreme  Court  shall  issue 
a  mandamus  directed  to  the  judge  of  the  Circuit  Court  requiring  him 
forthwith  to  make  return  of  his  reasons  for  not  certifying  the  bill  of 
exceptions,  and  the  judge  shall  forthwith  make  such  return,  and  the 
Supreme  Court  shall  hear  the  original  parties  and  determine  the 
validity  of  the  reasons  given  by  the  judge  for  his  failure  or  refusal ; 

3.  If  the  reasons  be  insufficient,  or  the  judge  fails  or  refuses  to 
make  any  return  to  the  mandamus,  the  Supreme  Court  shall  issue  a 
mandamus  absolute,  commanding  the  judge  to  sign  and  certify  the 
bill  of  exceptions,  as  set  forth  in  the  petition  or  as  modified  by  the 
Supreme  Court ; 

4.  If  he  still  refuses  to  do  so,  the  cause  shall  be  heard  by  the 
Supreme  Court  on  the  exceptions  as  verified  in  the  petition  for 
mandamus ; 

5.  In  the  hearing  upon  the  judge's  return,  as  provided  in  subdi- 
vision two  of  this  section,  the  Supreme  Court  may,  in  its  discretion, 
receive  other  testimony  than  the  judge's  return,  in  determining  the 
validity  of  the  reasons  given  by  the  judge  for  his  failure  or  refusal  to 
sign  the  bill  of  exceptions. 

Sec  537.  Dismissal  of  bills  of  exception. — Bills  of  exception  may 
be  dismissed  with  costs,  when  it  appears  upon  the  face  thereof  that  the 
Supreme  Court  has  not  jurisdiction,  or  that  the  action  has  not  been 
properly  brought  to  that  court  by  bill  of  exceptions,  or  that  the  ex- 
ceptions have  not  been  allowed  by  the  judge  of  the  Circuit  Court  or 
for  unreasonable  failure  to  prosecute  or  perfect  the  bill  of  exceptions. 
But  no  such  dismissal  shall  be  made  for  purely  formal  defects  not 
affecting  the  rights  of  the  parties,  nor  for  any  defect  which  can  be  re- 
moved, and  the  Supreme  Court  shall  give  such  reasonable  time  as  may 
be  necessary  to  remove  such  defect,  if  it  can  be  removed.  Nor  shall 
such  dismissal  be  made  as  a  penalty  upon  lawyer  or  client  for  non- 
compliance with  any  rule  or  rules  of  the  court,  where  there  has  been  a 
substantial  compliance  with  the  law  prescribing  the  method  of  bring- 
ing actions  into  the  Supreme  Court;  nor  for  any  want  of  technical 
conformity  to  the  laws  or  rules  regulating  the  practice  of  carrying 
cases  to  that  court,  where  there  is  enough  in  the  bill  of  exceptions  pre- 
sented to  enable  the  court  to  ascertain  substantially  the  real  questions 
presented  in  the  case  which  the  parties  seek  to  have  decided  therein; 
nor  shall  such  dismissal  be  granted  whereby  an  amendment  to  the 
bill  of  exceptions,  which  is  hereby  declared  to  be  lawful  and  allowable, 
and  imperfections  or  omissions  of  necessary  and  proper  allegations, 
could  be  corrected  from  the  record  in  the  case. 

Sec.  538.  Incomplete  record,  how  corrected. — If  at  any  time  when 
a  case  is  called  for  trial,  or  during  the  trial,  or  afterwards,  while  the 


CODE    OP    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  1  28 

Supreme  Court  may  have  the  same  under  consideration,  it  is  dis- 
covered that  the  record  is  so  incomplete  that  justice  requires  the  case 
to  be  postponed  until  the  record  can  be  made  complete,  the  court  shall 
postpone  the  further  consideration  of  the  same  and  make  such  order 
as  may  be  proper  and  necessary  to  complete  the  record,  in  the  interests 
of  justice.  But  the  court  may  dismiss  a  bill  of  exceptions  for  failure 
of  the  excepting  party  within  a  reasonable  time  to  comply  with  the 
orders  made  for  the  perfection  of  the  bill  of  exceptions. 

Sec.  539.  Effect  of  dismissing  hill  of  exceptions. — The  dismissal  of 
a  bill  of  exceptions  by  the  Supreme  Court  will  leave  the  action  as 
though  no  bill  of  exceptions  had  ever  been  filed,  and  the  judgment  of 
the  Circuit  Court  may  be  enforced  at  any  time  after  such  dismissal. 
But  the  execution  shall  include  additional  costs  allowed  by  the  Su- 
preme Court  upon  the  dismissal  of  the  bill  of  exceptions. 

Sec  540.  Judgment  not  to  be  reversed  on  technical  grounds. — No 
judgment  shall  be  reversed  on  formal  technical  grounds  or  for  such 
error  as  has  not  prejudiced  the  real  rights  of  the  excepting  party. 

Sec.  541.  May  order  trial  before  another  judge. — Whenever  a  judg- 
ment of  a  Circuit  Court  shall  be  reversed  and  a  new  trial  be  ordered, 
the  Supreme  Court  may  assign  one  of  its  own  members,  or  any  judge 
of  another  Circuit  Court,  to  hear  the  action  upon  the  new  trial,  in- 
stead of  the  judge  whose  judgment  has  been  vacated,  if,  in  the  opinion 
of  the  Supreme  Court,  fairness  to  the  parties  requires  such  order. 

Sec.  542.  Procedure  upon  new  trial. — In  a  new  trial  ordered  by  the 
Supreme  Court,  all  the  evidence  taken  upon  the  former  trial  which 
is  competent  and  admissible  shall  be  used  upon  the  new  trial  without 
retaking;  but  additional  evidence  may  be  presented  upon  the  second 
trial  by  either  party. 

Sec.  543.  Certificate  of  judgment  to  be  remitted  to  the  Circuit 
Court. — In  all  cases  heard  by  the  Supreme  Court  on  bills  of  excep- 
tion, its  judgments  shall  be  remitted  to  the  Circuit  Courts  from  which 
the  actions  respectively  came  into  the  Supreme  Court;  and  for  this 
purpose  it  shall  be  the  duty  of  the  clerk  of  the  Supreme  Court,  within 
ten  days  after  the  close  of  any  term,  to  remit  to  the  clerks  of  the 
Circuit  Courts,  notices  of  all  judgments  of  the  Supreme  Court  in 
actions  brought  from  the  Circuit  Courts  respectively.  Upon  receiv- 
ing the  notice  so  remitted,  the  clerk  of  the  Circuit  Court  shall  enter 
the  same  upon  his  docket  and  file  the  notice  with  the  other  papers  in 
the  action. 

The  judgment  so  remitted  shall  be  executed  by  the  Circuit  Court 
in  the  same  manner  as  though  the  action  had  not  been  carried  to  the 
Supreme  Court.  But  the  Supreme  Court  may,  by  special  order, 
direct  any  particular  judgment  to  be  remitted  to  the  proper  Circuit 
Court  at  any  time,  without  awaiting  the  end  of  the  term. 


124  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

Sec.  544.  The  clerk  of  the  Circuit  Court  to  give  notice  of  judg- 
ments remitted. — It  shall  be  the  duty  of  the  clerks  of  the  Circuit 
Courts,  upon  receiving  notice  of  any  judgment  remitted  by  the  Su- 
preme Court,  immediately  in  writing,  to  notify  the  counsel  of  all 
parties  of  the  judgment  that  has  been  received. 

Sec.  545.  Copy  of  opinion  certified  to  court  below. — In  all  cases 
in  which  the  Supreme  Court  shall  reverse  the  judgment  of  the  court 
below,  and  remand  the  action  to  be  proceeded  with  in  such  court, 
by  a  new  trial  or  otherwise,  the  clerk  of  the  Supreme  Court  shall 
prepare  and  certify  a  copy  of  the  opinion  of  the  Supreme  Court  in 
the  action,  and  send  it  with  the  certificate  of  the  judgment  rendered 
in  the  action  by  the  Supreme  Court,  to  the  clerk  of  the  court  from 
which  the  action  was  brought,  or  to  which  it  may  be  remanded ;  and 
the  fees  of  the  clerk  for  certifying  the  opinion  shall  be  a  part  of  the 
taxable  costs  of  the  case  in  the  Supreme  Court;  and  the  copy  of  the 
opinion  furnished  shall  be  preserved  by  the  clerk  to  whom  it  is  deliv- 
ered, for  the  use  of  the  court  and  parties. 

Sec  546.  Excepting  party  not  entitled  to  reversal  as  to  another. — 
In  all  actions,  civil  and  criminal,  a  judgment  excepted  to  may  be 
affirmed  as  to  some  of  the  excepting  parties,  and  reversed  as  to  others ; 
and  one  of  several  excepting  parties  shall  not  be  entitled  to  a  judg- 
ment of  reversal  because  of  an  error  in  the  judgment  against  another 
not  affecting  his  rights  in  the  case;  and  when  a  judgment  shall  be 
affirmed  as  to  some  of  the  excepting  parties  and  reversed  as  to  others 
the  case  shall  thereafter  be  proceeded  with,  so  far  as  necessary,  as 
if  separate  actions  had  been  begun  and  prosecuted ;  and  execution  of 
the  judgment  of  affirmance  may  be  had  accordingly,  and  costs  may  be 
adjudged  in  such  cases,  as  the  Supreme  Court  shall  deem  proper. 

Sec.  547.  Interest  on  judgment  affirmed. — When  the  Supreme 
Court  shall  affirm  a  judgment  of  a  court  below,  for  the  recovery  of 
money,  or  shall  reverse  a  judgment  of  a  court  below,  and  award  a 
sum  of  money  as  debt  or  damages,  it  shall  direct  that  interest  be 
added  to  the  original  judgment  or  sum  determined  to  be  due,  from 
the  date  of  the  former  judgment  until  the  date  of  the  final  judgment, 
at  the  rate  of  six  per  cent  per  annum. 

Sec.  548.  Extraordinary  orders  enforced  by  lower  court,  when. — 
When  judgments  are  rendered  in  injunction  or  other  extraordinary 
cases,  the  judges  of  the  Circuit  Court  are  clothed  with  the  power  to 
give  immediate  effect  to  them  either  in  term  time  or  in  vacation,  after 
the  judgment  of  the  Supreme  Court  has  been  remitted  to  the  Circuit 
Court  as  above  provided. 

Sec.  549.  Bills  of  exception  to  be  printed. — The  Supreme  Court 
may  cause  ten  copies  of  all  bills  of  exceptions  to  be  printed,  for  the 
use  of  the  judges  and  all  counsel  in  the  case.     The  expense  of  print- 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  125 

ing  shall  be  paid  primarily  by  the  excepting  party,  ;md  shall  be  taxed 
as  a  part  of  costs  in  the  case. 

Chapter  XXVI. 

PROCEEDINGS   OF  SUPREME   COURT  IN   THE   EXERCISE   OF  ITS   ORIGINAL 

JURISDICTION. 

Sec.  550.  Procedure  in  cases  of  default  caused  by  fraud,  accident, 
or  mistake.— When  a  judgment  is  rendered  by  a  Circuit  Court  upon 
default,  and  a  party  thereto  is  unjustly  deprived  of  a  hearing  by 
fraud,  accident,  mistake,  or  excusable  negligence,  and  the  Circuit 
Court  which  rendered  the  judgment  has  finally  adjourned  so  that  no 
adequate  remedy  exists  in  that  court,  the  party  so  deprived  of  a 
hearing  may  present  his  petition  to  the  Supreme  Court  within  sixty 
days  after  he  first  learns  of  the  rendition  of  such  judgment,  and  not 
thereafter,  setting  forth  the  facts  and  praying  to  have  such  judg- 
ment set  aside.  The  court  shall  summarily  on  notice  to  both  parties 
hear  such  petition,  upon  oral  or  written  testimony  as  it  shall  direct, 
and  the  judgment  shall  be  set  aside  and  a  trial  upon  the  merits 
granted,  upon  such  terms  as  may  be  just,  if  the  facts  set  forth  in  the 
complaint  are  found  to  be  true,  otherwise  the  complaint  shall  be  dis- 
missed with  costs. 

If  a  trial  on  the  merits  is  granted,  the  order  shall  forthwith  be 
certified  to  the  Circuit  Court.  Pending  such  petition,  any  judge  of 
the  Supreme  Court  for  cause  shown,  may  order  a  suspension  of  fur- 
ther proceedings  to  enforce  the  judgment  complained  of,  upon  taking 
sufficient  security  from  the  petitioner  for  all  costs  and  damages  that 
may  be  awarded  against  him  in  case  the  petition  is  dismissed. 

'Sec.  551.  Procedure  in  certiorari. — The  Supreme  Court  shall  have 
concurrent  jurisdiction  with  the  Circuit  Court  in  certiorari  proceed- 
ings over  any  other  inferior  tribunal,  board,  or  officer  exercising 
judicial  functions  that  has  exceeded  the  jurisdiction  of  such  tribunal, 
board,  or  officer  and  where  there  is  no  appeal  or  any  plain,  speedy,  or 
adequate  remedy,  and  shall  likewise  have  original  jurisdiction  by 
certiorari  proceedings  over  the  proceedings  of  Circuit  Courts  wher- 
ever said  courts  have  exceeded  their  jurisdiction,  and  there  is  no 
plain,  speedy  and  adequate  remedy  by  bill  of  exception,  or  appeal,  or 
otherwise.  The  proceedings  of  the  Supreme  Court  in  certiorari  pro- 
ceedings shall  be  the  same  as  those  provided  for  such  proceedings 
for  Circuit  Courts. 

Sec.  552.  Procedure  in  mandamus. — The  Supreme  Court  shall  have 
concurrent  jurisdiction  with  the  Circuit  Courts  in  all  cases  where 
any  inferior  tribunal,  corporation,  board,  or  person  unlawfully  neg- 
lects the  performance  of  an  act  which  the  law  specially  enjoins  as 
a  duty  resulting  from  an  office  of  trust  or  station,  or  unlawfully 
SOMa—  07— m 9 


1:2<>  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

deludes  the  plaintiff  from  the  use  and  enjoyment  of  a  right  or  office 
to  which  he  is  entitled,  and  from  which  he  is  unlawfully  excluded 
>y  such  inferior  tribunal,  corporation,  board,  or  person,  and  also 
:shall  have  original  jurisdiction  over  Circuit  Courts  and  judges 
thereof  wherever  said  court  or  judge  unlawfully  neglects  the  per- 
formance of  a  duty  which  the  law  specifically  or  specially  enjoins 
as  a  duty  imposed  upon  such  court  or  judge.  The  procedure  of  the 
Supreme  Court  in  mandamus  proceedings  shall  be  the  same  as  those 
provided  for  mandate  in  this  Code. 

Sec.  553.  Prohibition. — The  Supreme  Court  shall  have  concurrent 
jurisdiction  with  Circuit  Courts  over  inferior  tribunals,  corporations, 
boards,  or  persons,  whether  exercising  functions  judicial  or  minis- 
terial, which  are  without  or  in  excess  of  the  jurisdiction  of  such 
tribunal,  corporation,  board,  or  person,  and  also  have  original  juris- 
diction over  Circuit  Courts  when  such  courts  are  exercising  func- 
tions without  or  in  excess  of  their  jurisdiction.  The  proceedings 
of  the  Supreme  Court  in  prohibition  shall  be  the  same  as  those  pro- 
vided for  prohibition  in  this  Code. 

Sec.  554.  Preliminary  injunctions  in  certiorari,  mandate,  prohibi- 
tion proceedings. — In  certiorari,  mandamus,  and  prohibition  proceed- 
ings an  injunction  may  be  granted  by  any  judge  of  the  Supreme 
Court,  if  in  his  judgment  such  injunction  is  necessary  for  the  pres- 
ervation of  the  rights  of  the  parties  pending  litigation. 

Sec.  555.  Expediting  such  proceedings. — The  court  may,  in  its 
discretion,  make  such  orders  as  it  deems  necessary  for  expediting 
proceedings  in  petitions  for  certiorari,  mandamus,  or  prohibition 
proceedings. 

Sec.  556.  Quo  warranto. — The  Supreme  Court  shall  have  con- 
current jurisdiction  with  Circuit  Courts  over  actions  brought  by 
treason  of  the  usurpation  of  a  public  civil  office,  or  franchise,  or  an 
-office  in  a  corporation  created  by  authority  of  the  government  of 
the  Canal  Zone  without  being  legally  incorporated,  or  without  law- 
ful authority  to  do  so;  and  over  corporations  that  have  forfeited 
their  privileges  and  franchise  by  a  nonuser,  and  when  they  have 
committed  or  omitted  an  act  which  amounts  to  a  surrender  of  their 
corporate  rights,  privileges,  or  franchises,  or  when  they  have  misused 
a  franchise,  privilege,  or  right  conferred  upon  them.by  law,  or  when 
they  have  exercised  a  franchise,  privilege,  or  right  in  contravention 
of  law.  Its  proceedings  in  the  exercise  of  this  original  jurisdiction 
shall  be  in  accordance  with  the  provisions  of  this  Code. 

Chapter  XXVII. 

the  clerk  or  the  supreme  court  and  his  duties. 

Sec.  557.  .The  clerk. — The  clerk  of  the  Supreme  Court  shall  care- 
fully keep  a  minute  of  the  proceedings  of  the  court  for  each  day, 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  127 

drawn  up  in  a  record  book  to  be  kept  by  him  for  that  purpose;  he 
shall  seasonably  record  the  judgments,  decrees,  orders,  and  decisions 
of  the  court.  He  shall  safely  keep  all  records,  files,  books,  and  papers 
committed  to  his  charge,  including  the  library  of  the  Supreme  Court 
and  also  all  seals  and  furniture  belonging  to  his  office,  and  deliver 
such  records,  files,  books,  seals,  and  furniture  to  his  successor  in  office ; 
and  in  case  of  refusal  or  failure  to  deliver  whatever  belong  to  his  office 
to  his  successor,  his  bondsmen  shall  be  holden  for  such  refusal  or 
failure;  he  shall  prepare  for  any  person  demanding  the  same,  a 
certified  copy  of  any  paper,  record,  decree,  judgment,  or  entry  on 
file  in  his  office,  proper  to  be  certified,  for  the  fees  prescribed  by 
law.  He  shall  issue  all  ordinary  process  incident  to  proceedings  in 
the  Supreme  Court,  not  including  injunctions,  appointment  of  re- 
ceivers and  other  extraordinary  functions  appertaining  to  the  court 
or  judge  only.  The  transcript  filed  in  the  Supreme  Court,  the  process 
in  each  case,  and  the  judgment  or  decree  entered  therein  shall  be 
the  final  record  in  the  cause  in  the  Supreme  Court,  certified  as  such 
by  the  clerk  whenever  an  exemplification  of  a  judgment  or  a  decree 
of  the  court  may  be  required. 

Sec.  558.  Dockets. — It  shall  be  the  duty  of  the  clerk  of  the  court 
to  make  out  and  keep  a  general  docket  or  register  of  actions  and 
proceedings  wherein  all  actions  and  proceedings,  civil  and  criminal, 
shall  be  entered  and  numbered  consecutively  in  the  order  in  which 
they  are  received.  He  shall  enter  upon  his  docket,  under  the  head 
of  each  action  or  proceeding,  in  brief  form,  a  note  of  everything 
done  therein.  He  shall  also  prepare  and  keep  such  other  books  as 
the  court  shall  direct. 

Chapter  XXVIII. 

SPECIAL    PROCEEDINGS. 

Power  of  judge  or  court  in  special  proceedings. 

Sec.  559.  Any  act  required  or  authorized  to  be  performed  by  a 
Circuit  Court  in  special  proceedings  may  be  performed  by  the  judge 
thereof,  and  the  orders,  judgments,  and  decrees  made  by  him  as 
judge  at  any  time,  within  his  jurisdiction,  in  such  proceedings,  shall 
be  equally  effective  as  though  made  in  open  court  at  a  regular  session 
thereof. 

Chapter  XXIX. 

PROCEEDINGS   IN    HABEAS    CORPUS. 

Sec.  560.  To  what  habeas  corpus  extends. — The  writ  of  habeas 
corpus  shall  extend  to  all  cases  of  illegal  confinement  or  detention 
by  which  any  person  is  deprived  of  his  liberty,  or  by  which  the 


128  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

rightful  custody  of  any  person  is  withheld  from  the  person  entitled 
thereto,  except  in  cases  expressly  excepted. 

Sec.  561.  Who  may  grant  the  writ. — The  writ  of  habeas  corpus 
may  be  granted  by  the  Supreme  Court,  or  any  judge  thereof,  in 
term  time  or  in  vacation,  and  if  so  granted  it  shall  be  enforceable 
anywhere  in  the  Canal  Zone,  and  it  shall  be  enforceable  before  the 
court  or  any  judge  thereof.  It  may  also  be  granted  by  a  Circuit 
Court,  or  a  judge  thereof,  in  term  time  or  in  vacation,  and  returnable 
before  himself,  enforceable  within  the  Canal  Zone. 

Sec  562.  Requisites  of  application  therefor. — Application  for  the 
writ  shall  be  by  petition  signed  and  verified  either  by  the  party  for 
whose  relief  it  is  intended,  or  by  some  person  for  him,  and  shall 
specify : 

1.  That  the  person  in  whose  behalf  the  application  is  made  is 
imprisoned  or  restrained  of  his  liberty ; 

2.  The  officer  or  name  of  the  person  by  whom  he  is  so  confined  or 
restrained  or,  if  both  are  unknown  or  uncertain,  he  may  be  described 
by  an  assumed  appellation,  and  the  person  who  is  served  with  the 
writ  shall  be  deemed  the  person  intended ; 

3.  The  place  where  he  is  so  imprisoned  or  restrained,  if  known; 

4.  A  copy  of  the  commitment  or  cause  of  detention  of  such  person 
shall  be  exhibited,  if  it  can  be  procured,  without  impairing  the 
efficiency  of  the  remedy ;  or,  if  the  imprisonment  or  detention  is  with- 
out any  legal  authority,  such  fact  shall  appear. 

Sec  563.  When  the  writ  shall  not  be  allowed. — If  it  appears  that 
the  person  alleged  to  be  restrained  of  his  liberty  is  in  custody  of 
an  officer  under  process  issued  by  a  court  or  magistrate,  or  by  virtue 
of  a  judgment  or  order  of  a  court  of  record,  and  that  the  court  or 
magistrate  had  jurisdiction  to  issue  the  process,  render  the  judgment, 
or  make  the  order,  the  writ  shall  not  be  allowed ;  or  if  no  jurisdic- 
tion appear  after  the  writ  is  allowed,  the  person  shall  not  be  dis- 
charged by  reason  of  any  informality  or  defect  in  the  process, 
judgment,  or  order. 

Sec  564.  Not  to  apply  in  certain  cases. — Nothing  in  this  chapter 
shall  authorize  the  discharge  of  any  person  convicted  of  an  offense, 
or  charged  with  an  offense,  committed  in  any  other  part  of  the  Canal 
Zone,or  in  any  part  of  the  United  States,  and  who,  agreeably  to  law, 
ought  to  be  delivered  up  to  the  executive  power  of  the  United  States 
or  of  any  State  thereof,  where  the  offense  is  charged  to  have  been 
committed;  nor  of  any  person  suffering  imprisonment  under  lawful 
judgment. 

Sec  565.  When  the  writ  must  be  granted. — A  judge  or  a  court 
authorized  to  grant  a  writ  must,  when  a  petition  therefor  is  pre- 
sented, if  it  appear  that  the  writ  ought  to  issue,  grant  the  same 
forthwith. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  12^ 

Sec.  566.  Who  to  issue  the  writ. — The  writ,  upon  its  allowance, 
shall  be  issued  forthwith,  by  the  clerk  of  the  court  whereof  the  per- 
son who  granted  it  is  a  judge,  under  the  seal  of  such  court;  or  in 
case  of  emergency,  such  judge  may  issue  the  writ  under  his  own 
hand,  and  may  depute  any  officer  or  person  to  serve  it. 

Sec  567.  How  prisoner  may  he  designated. — The  person  to  be  pro- 
duced should  be  designated  by  his  name,  if  known,  and  if  not 
known,  or  uncertain,  he  may  be  described  in  any  other  way  so  as  to 
make  known  who  is  intended. 

Sec  568.  Requisites  of  -writ  in  certain  cases. — In  case  of  confine- 
ment, imprisonment,  or  detention  by  an  officer,  the  writ  shall  be 
directed  to  him  and  shall  command  him  to  have  the  body  of  such 
person  before  the  court  or  judge  designated  in  the  writ,  at  the  time 
and  place  therein  specified. 

Sec  569.  Form  of  writ  when  prisoner  not  in  custody  of  an  offi- 
cer.— In  case  of  confinement,  imprisonment,  or  detention,  by  a  per- 
son not  an  officer,  the  writ  shall  be  substantially  in  the  form  fol- 
lowing : 

"  United  States  or  America, 

"  Canal  Zone,  ss: 
"To  the  marshal  or  his  deputy  of  any  circuit,  greeting: 

"We  command  you  that  the  body  of ,of 

by of ,  imprisoned  and  restrained  of  his 

liberty,  as  it  is  said,  you  take  and  have  before ,  a  judge 

of  our court  (or  before  the  court,  as  the  case  may  be) 

or  in  case  of  his  absence  or  disability,  before  some  other  judge  of  the 

same  court  at ,  forthwith  to  do  and  receive  what  the 

said  judge  shall  then  and  there  consider,  concerning  him  in  this 

behalf;  and  summon  the  said then  and  there  to  appear 

before  our  said  judge  (or  court)  to  show  the  cause  of  the  taking  and 
detention  of  the  said 

"  Witness  my  hand  at this day  of in 

the  year  19__. 

"(Seal.)  , 

" Judge  of  the Court  (as  the  case  may  be)." 

Sec  570.  How  and  where  writ  may  he  served. — The  writ  may  be 
served  in  any  circuit,  by  the  marshal  or  his  deputy,  or  by  a  person 
deputed  by  the  court  or  judge. 

Sec  571.  How  executed  and  returned. — The  officer  or  person  to 
whom  the  writ  is  directed  shall  convey  the  person  so  imprisoned  or 
detained,  and  named  in  the  writ,  before  the  judge  allowing  the  writ, 
or,  in  case  of  his  absence  or  disability,  before  some  other  judge  of 
the  same  court,  on  the  day  specified  in  the  writ;  and  he  shall  make  due 
return  of  the  writ,  together  with  the  day  and  the  cause  of  the  cap- 
tion and  detention  of  such  person  according  to  the  demand  thereof. 


130  CODE    OF    CIVIL   PKOCEDURE    OF    THE    CANAL   ZONE. 

Sec.  572.  When  it  may  be  returned  to  another  judge  or  court. — 
When  the  writ  is  issued  by  a  court  in  session,  if  the  court  has  ad- 
journed when  the  same  is  returned,  it  shall  be  returned  before  any 
judge  of  the  same  court;  and  when  the  writ  is  returned  before  one 
judge,  at  a  time  when  the  court  is  in  session,  he  may  adjourn  the 
case  into  the  court  there  to  be  heard  and  determined. 

Sec  573.  What  shall  be  stated  in  the  return  of  the  writ. — When 
the  person  to  be  produced  is  imprisoned  or  restrained  by  an  officer, 
the  person  who  makes  the  return  shall  state  therein,  and  in  other 
cases,  the  person  in  whose  custody  the  prisoner  is  found,  shall  state, 
in  writing,  to  the  court  or  judge  before  whom  the  writ  was  returnable 
plainly  and  unequivocally: 

1.  Whether  he  has  or  has  not  the  part}'  in  his  custody  or  power 
or  under  restraint; 

2.  If  he  has  the  party  in  his  custody  or  power,  or  under  restraint, 
he  shall  set  forth,  at  large,  the  authority  and  the  true  and  whole 
cause  of  such  imprisonment  and  restraint,  with  a  copy  of  writ, 
warrant,  execution,  or  other  process,  if  any,  upon  which  the  party 
is  detained ; 

3.  If  he  has  had  the  party  in  his  custody  or  power,  or  under  re- 
straint, and  has  transferred  such  custody  or  restraint  to  another, 
he  shall  state  particularly  to  whom,  at  what  time,  for  what  cause, 
and  by  what  authority  such  transfer  was  made. 

Sec  574.  The  return  must  be  signed  and  sworn  to. — The  return 
or  statement  shall  be  signed  by  the  person  who  makes  it;  and  shall 
also  be  sworn  to  by  him.  unless  he  is  a  sworn  public  officer,  and 
makes  the  return  in  his  official  capacity. 

Sec  575.  Adjournment  of  cause. — The  court  or  judge  to  whom  the 
writ  is  returned,  or  the  court  into  which  it  is  adjourned,  may,  for 
good  cause  shown,  continue  the  cause,  and  shall  make  such  order 
for  the  safe-keeping  of  the  person  imprisoned  or  detained  as  the 
nature  of  the  cause  requires. 

Sec  570.  When  prisoner  shall  be  discharged.— When  the  judge 
or  court  has  examined  into  the  cause  of  caption  and  detention  of  the 
person  so  brought  before  it,  and  is  satisfied  that  he  is  unlawfully 
imprisoned  or  detained,  he  shall  forthwith  discharge  him  from  con- 
finement. On  such  examination  the  judge  shall  disregard  matters 
of  form  or  technicalities  in  any  warrant,  mittimus,  or  order  of  com- 
mitment by  a  court  or  officer  authorized  to  commit  by  law. 

Sec  577.  When  prisoner  may  be  committed  to  jail,  or  let  to  bail. — 
When  the  prisoner  is  confined  or  detained  in  a  legal  manner,  on  a 
charge  of  having  committed  a  crime  or  offense  which  is  bailable, 
the  judge  or  court  shall,  in  its  discretion,  recommit  him  to  confine- 
ment, or  "  let  him  to  bail ";  if  he  be  let  to  bail,  the  judge  shall  cause 
him  to  enter  into  a  recognizance,  with  sufficient  surety,  in  such  a  sum 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  131 

as  he  deems  reasonable — the  circumstances  of  the  prisoner,  and  tin 
nature  of  the  offense  charged,  considered — conditioned  for  his  ap- 
pearance at  the  court  where  the  offense  is  properly  cognizable;  tin 
judge  shall  certify  his  proceedings,  together  with  the  recognizance, 
forthwith  to  the  proper  court;  and  if  the  person  charged  fail  to  enter- 
into  such  recognizance,  he  shall  be  committed  to  prison  b}7  the  judge. 

Sec.  578.  WIicn  prisoner  must  be  convmitted. — If  it  appear  that 
the  prisoner  was  committed  by  a  judge  or  justice,  and  is  plainly 
and  specifically  charged  in  the  warrant  of  commitment  with  a  high, 
crime,  punishment  whereof  is  capital,  he  shall  not  be  released,  dis- 
charged, or  bailed. 

Sec  579.  When  tin  return  is  evidence,  and  when  only  a  plea.— If 
it  appear  that  the  prisoner  is  in  custody  under  a  warrant  of  commit- 
ment in  pursuance  of  law,  the  return  shall  be  considered  prima  facie 
evidence  of  the  cause  of  detention ;  but  if  he  is  restrained  of  his  lib- 
erty by  any  alleged  private  authority,  the  return  of  the  writ  shall  be- 
considered  only  as  a  plea  of  the  facts  therein  set  forth,  and  the  party- 
claiming  the  custody  shall  be  held  to  make  proof  of  such  facts;  and 
upon  the  final  disposition  of  any  cause,  the  court  or  judge  shall 
make  such  order  as  to  costs  as  the  case  requires. 

Sec.  580.  Penalty  upon  clerk  for  refusing  to  issue  the  writ. — If 
a  clerk  of  a  court  refuse  to  issue  the  writ,  after  allowance  thereof 
and  demand  therefor,  he  shall  forfeit  to  the  party  aggrieved  the? 
sum  of  five  hundred  dollars,  to  be  recovered  in  a  proper  action. 

Sec.  581.  Penalty  for  disobeying  the  writ.^A  person  to  whom  ;i 
writ  is  directed,  who  neglects  or  refuses  to  obey  or  make  return  of 
the  same,  according  to  the  command  thereof,  or  makes  false  return 
thereof,  or  who.  upon  demand  made  by  the  prisoner  or  any  person 
on  his  behalf,  refuses  to  deliver  to  the  person  demanding,  within 
six  hours  after  the  demand  therefor,  a  true  copy  of  the  warrant 
of  commitment  and  detainer  of  the  prisoner  shall,  for  the  first 
offense  forfeit  to  the  party  aggrieved  two  hundred  dollars,  and 
for  the  second  offense  four  hundred  dollars,  and  may  also  be  dealt 
with  by  the  judge  of  the  court  as  for  contempt. 

Sec.  582.  Persons  set  at  liberty  upon  the  writ  not  to  be  ago  in  im- 
prisoned.— A  person  who  is  set  at  liberty  upon  a  writ  of  habeas 
corpus  shall  not  be  again  imprisoned  for  the  same  offense  unless 
by  the  legal  order  or  process  of  the  court  wherein  he  is  bound  l>\ 
recognizance  to  appear,  or  other  court  having  jurisdiction  of  the 
cause  of  offense;  and  a  person  who  knowingly,  contrary  to  the  pro- 
visions of  this  chapter,  recommits  or  imprisons,  or  causes  to  be 
committed  or  imprisoned,  for  the  same  offense,  or  pretended  offense,, 
any  person  so  set  at  liberty,  or  knowingly  aids  or  assists  therein,, 
shall  forfeit  to  the  party  aggrieved  five  hundred  dollar-  notwith- 
standing  any   colorable    pretense    or    variation    in    the    warrant    of 


132  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

commitment,  and  may  also  be  dealt  with  as  for  a  contempt  by  the 
judge  or  court  granting  the  writ. 

Sec.  583.  Prisoner  not  to  he  removed  from  the  custody  of  one  offi- 
cer to  another,  unless,  and  so  forth. — A  person  committed  to  prison, 
or  in  the  custody  of  an  officer,  for  any  criminal  matter,  shall  not  be 
removed  therefrom  into  the  custody  of  another  officer,  unless  by  legal 
process,  or  the  prisoner  be  delivered  to  an  inferior  officer  to  carry 
to  jail,  or,  by  order  of  the  proper  court,  be  removed  from  one  place 
to  another  within  the  Canal  Zone,  for  trial,  or  in  case  of  fire,  infec- 
tion, insurrection,  or  other  necessity;  and  a  person  who,  after  such 
commitment,  makes,  signs,  or  countersigns  any  warrants,  for  such 
removal  contrary  to  this  section,  shall  forfeit  to  the  party  aggrieved 
five  hundred  dollars. 

Sec.  584.  Record  of  writ,  and  so  forth. — The  proceedings  upon  a 
writ  of  habeas  corpus  shall  be  recorded  by  the  clerks  respectively. 

Sec  585.  Fees  and  costs. — The  fees  of  officers  and  witnesses  shall 
be  taxed  by  the  judge,  on  his  return  of  his  proceedings  on  the  writ, 
and  when  the  prisoner  is  discharged,  the  costs  shall  be  taxed  to  the 
Government  of  the  Canal  Zone,  and  paid  out  of  its  treasury;  but 
no  office]'  or  person  shall  have  the  right  to  demand  payment  in  ad- 
vance of  any  fees  which  he  is  entitled  to  by  virtue  of  the  proceedings 
when  the  writ  is  demanded  or  issued  for  the  discharge  from  custody 
or  the  person  confined  under  color  of  proceedings  in  any  criminal 
case;  when  a  person  in  custody  by  virtue  or  under  color  of  proceed- 
ings in  any  civil  case  is  discharged  the  costs  shall  be  taxed  against 
the  party  at  whose  instance  he  was  so  in  custody;  and  if  he  be  re- 
manded to  custody,  costs  shall  be  taxed  against  him. 

Chapter  XXX. 

GUARDIANS,   THEIR  APPOINTMENT,   DUTIES,   POWERS,   AND   ACCOUNTS. 

Guardians  of  minors. 

Sec.  586.  Judge  of  Circuit  Court  may  appoint  guardian. — The 
judge  of  a  Circuit  Court  of  each  circuit,  when  it  appears  necessary 
or  convenient,  may  appoint  giiardians  for  the  persons  and  estates,  or 
either  of  them,  of  minors,  who  have  no  guardian  legally  appointed 
by  will  or  deed,  and  who  are  inhabitants  or  residents  of  the  Canal 
Zone,  or  who  reside  without  the  Canal  Zone  and  have  estates  within 
the  circuit.  Such  appointment  may  be  made  on  the  petition  of  a 
relative,  or  other  person  on  behalf  of  the  minor,  or  on  petition  of  the 
minor,  if  fourteen  years  of  age.  Before  making  such  appointment 
the  judge  must  cause  such  notice  as  he  deems  reasonable  to  be  given 
to  any  person  having  the  care  of  such  minor,  and  to  such  relatives 
of  a  minor  residing  in  the  circuit  as  he  may  deem  proper. 


CODE    OF    CIVIL    PEOCEDUBE    OF    THE    CANAL    ZONK.  133 

Sec.  587.  Spanish  law  as  to  power  of  family  council  in  guardian- 
ship mutters  repealed. — All  provisions  of  Spanish  law  heretofore 
prevailing  in  the  Canal  Zone  giving  to  the  family  council  any  author- 
ity in  the  appointment  of  guardians  for  minors  or  other  persons,  are 
hereby  repealed. 

Sec.  588.  Father  or  mother  natural  guardians  and  to  be  appointed 
guardian  of  estate,  if  competent. — The  father,  or.  in  case  of  his  death 
or  legal  disqualification,  the  mother,  of  a  minor  child  is  to  be  deemed 
the  natural  guardian  of  the  child,  and  as  such  is  entitled  to  the  cus- 
tody and  care  for  the  education  of  the  child,  but  not  of  his  estate 
unless  so  ordered  by  the  court,  preference  being  given  in  the  order 
just  named;  but  the  court  shall  have  the  power  to  set  aside  the 
order  of  preference  here  provided  and  to  appoint  any  suitable  per- 
son as  guardian,  either  of  the  person  or  of  the  estate  of  the  minor, 
or  both,  as  the  best  interests  of  the  child  may  require.  The  authority 
of  the  guardian  can  not  be  extinguished  or  affected  by  the  marriage 
of  the  guardian. 

Sec.  589.  Guardian  to  care  for  minor's  education. — A  guardian 
duly  appointed  shall  have  the  custody  and  care  of  the  education  of 
the  minor,  if  the  court  shall  so  order,  and  likewise  the  care  and  man- 
agement of  his  estate,  if  the  court  shall  so  order,  until  such  minor 
arrives  at  the  age  of  majority,  or  marries,  or  until  the  guardian  is 
legally  discharged. 

Sec.  590.  Bond  of  guardian. — Before  the  order  appointing  any 
person  guardian  under  this  chapter  takes  effect,  and  before  letters 
of  guardianship  issue,  the  judge  must  require  of  such  person  a  bond 
to  the  minor,  with  sufficient  surety,  to  be  approved  by  the  judge, 
and  in  such  sum  as  he  shall  order,  conditioned  that  the  guardian 
will  faihtfully  execute  the  duties  of  his  trust  according  to  law,  and 
the  following  conditions  shall  form  a  part  of  such  bond  without 
being  expressed  therein : 

1.  To  make  an  inventory  of  all  the  estate,  real  and  personal,  of 
his  ward,  that  comes  to  his  possession  or  knowledge,  and  to  return 
the  same  within  such  time  as  the  court  may  order; 

2.  To  dispose  of  and  manage  the  estate  according  to  law  for  the 
best  interests  of  the  ward,  and  faithfully  to  discharge  his  trust  in 
relation  thereto,  and  also  in  relation  to  the  care,  custody,  and  educa- 
tion of  the  ward: 

3.  To  render  an  account  on  oath  of  the  property,  estate,  and  moneys 
of  the  ward  in  his  hands,  and  all  proceeds  or  interest  derived  there- 
from, and  of  the  management  and  disposition  of  the  same,  within 
three  months  after  his  appointment,  and  at  such  other  times  as  the 
judge  directs,  and  at  the  expiration  of  his  trust,  to  settle  his  accounts 
with  the  Circuit  Court  and  to  pay  over  and  deliver  all  the  estate, 
moneys,  and  effects  remaining  in  his  hands,  and  due  from  him  on 


134  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

such  settlement,  to  the  person  lawfully  entitled  thereto.  Upon  filing 
the  bond  duly  approved,  letters  of  guardianship  must  issue  from  the 
judge  to  the  person  appointed.  The  oath  of  the  guardian  shall  be 
indorsed  thereon  that  he  will  perform  the  duties  as  such  guardian 
according  to  law. 

Sec.  591.  Recording  letters  of  giiardianship. — All  letters  of  guard- 
ianship issued,  and  all  guardians'  bonds  executed  under  the  pro- 
visions of  this  chapter,  together  with  the  oaths  thereon,  must  be 
recorded  by  the  clerk  of  the  Circuit  Court  of  the  circuit  within  and 
for  which  the  appointment  is  made. 

Skc  59*2.  Testamentary  guardians. — Every  guardian  appointed  by 
the  will  of  a  parent  must  give  bond  and  qualify,  and  has  the  same 
powers  and  has  the  same  duties  in  regard  to  the  person  and  estates 
of  his  ward  as  guardians  appointed  by  the  court,  except  so  far  as 
their  powers  and  duties  are  legally  modified,  enlarged,  or  changed 
by  the  will  by  which  such  guardian  was  appointed. 

Sec.  593.  Guardians  ad  litem  not  affected  by  this  chapter. — Noth- 
ing contained  in  this  chapter  affects  or  impairs  the  power  of  any 
court  to  appoint  a  guardian  ad  litem,  to  defend  the  interest  of  any 
minor  interested  in  any  action  or  matter  pending  therein. 

Guardians  of  persons  of  unsound  mind. 

Sec.  504  Appointment  of  guardians  of  persons  of  unsound  mind. — 
When  it  is  represented  to  a  Circuit  Court  or  a  judge  thereof  by  peti- 
tion verified  by  oath  of  any  relative  or  friend,  that  any  person  who  is 
an  inhabitant  or  resident  of  the  circuit,  is  insane  or  a  spendthrift, 
incompetent  to  manage  his  estate,  praying  that  a  guardian  may  be 
appointed  for  such  person,  such  court  or  judge  must  cause  a  notice 
to  be  given  to  the  supposed  insane  or  incompetent  person  of  the  time 
and  place  of  hearing  the  petition,  not  less  than  five  days  before  the 
time  so  appointed;  and  such  person,  if  able  to  attend,  must  be 
produced  on  the  hearing. 

Sec.  595.  Duty  of  court  to  appoint. — If  after  a  full  hearing  and 
examination  upon  such  petition,  it  appears  to  the  court  or  judge  that 
the  person  in  question  is  incapable  of  taking  care  of  himself  and 
managing  his  property,  such  court  or  judge  must  appoint  a  guardian 
of  his  person  and  estate,  with  the  powers  and  duties  thereinafter 
specified. 

Skc.  596.  Power  a  ml  bond  of  </u<ir<li<in. — Every  guardian  ap- 
pointed, as  provided  in  the  preceding  section,  shall  have  the  care  and 
custody  of  the  person  of  his  ward  and  the  management  of  all  his 
estate,  until  such  guardian  is  legally  discharged;  and  he  must  give 
bond  to  such  ward  in  like  manner  and  with  like  conditions  as  before 
prescribed  with  reference  to  the  guardian  of  a  minor. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  135 

Sec.  597.  Restoration  of  competency. — Any  person  who  lias  been 
declared  insane  or  incompetent,  or  the  guardian  or  any  relative  of 
such  person  within  the  third  degree,  or  any  friend,  may  apply,  by 
petition  to  the  Circuit  Court  in  which  the  appointment  of  guardian 
was  made,  and  have  the  fact  of  his  restoration  to  capacity  judicially 
determined.  The  petition  shall  be  verified  by  oath,  and  shall  state 
that  such  person  is  then  sane  and  competent.  Upon  receiving  the 
petition,  the  court  must  appoint  a  day  for  hearing  before  the  court. 
and  shall  cause  notice  of  the  trial  to  be  given  to  the  guardian  of  the 
person  so  declared  insane  or  incompetent  and  to  the  ward.  On  the 
trial,  the  guardian,  or  relatives  of  the  person  so  declared  insane  or 
incompetent,  and  in  the  discretion  of  the  court  any  other  person, 
may  contest  the  right  to  the  relief  demanded.  Witnesses  may  be  re- 
quired to  appear  and  testify,  and  may  be  called  and  examined  by  the 
court  on  its  own  motion.  If  it  be  found  that  the  person  be  of  sound 
mind,  and  capable  of  taking  care  of  himself  and  property  his 
restoration  to  capacity  shall  be  adjudged  and  the  guardianship  of 
such  person,  if  such  person  be  not  a  minor,  shall  cease. 

Sec.  598.  Gudrdiati  to  pay  debts  of  ward. — Every  guardian  ap- 
pointed under  the  provisions  of  this  chapter,  whether  for  a  minor  or 
any  other  person,  must  pay  all  just  debts  due  from  his  ward  out  of  his 
personal  estate  and  the  income  of  his  real  estate  if  sufficient;  if  not, 
then  out  of  his  real  estate,  upon  obtaining  an  order  for  the  sale 
thereof,  and  disposing  of  the  same,  in  the  manner  provided  in  this 
Code  for  the  sale  of  real  estate  of  deceased  persons. 

Sec  599.  Guardian  to  settle  all  affairs  of  ward. —  Every  guardian 
must  settle  all  accounts  of  the  ward,  and  demand,  sue  for,  and  receive 
all  debts  clue  to  him,  or  may,  with  the  approbation  of  the  judge, 
compound  for  the  same  and  give  discharges  to  the  debtor,  on  receiv- 
ing a  fair  and  just  dividend  of  the  estate  and  effects;  he  must  appear 
for  and  represent  his  ward  in  all  legal  suits  and  proceedings,  unless 
another  person  be  appointed  for  that  purpose. 

Sec.  600.  Management  of  ward's  estate. — Every  guardian  must 
manage  the  estate  of  his  ward  frugally  and  without  waste,  and  apply 
the  income  and  profits  thereof,  so  far  as  may  be  necessary,  for  the 
comfortable  and  suitable  maintenance  of  the  ward  and  his  family,  if 
there  be  any;  and  if  such  income  and  profits  be  insufficient  for  that 
purpose,  the  guardian  may  sell  the  real  estate,  upon  obtaining  an 
order  of  the  judge  therefor,  as  provided  in  the  preceding  section. 
He  must  apply  the  proceeds  of  such  sale,  so  far  as  may  be  necessary, 
for  the  maintenance  and  support  of  his  ward  and  his  family  if 
there  be  any. 

Sec.  601.  Entrusting  ward  with  a  portion  of  his  estate.— Where  it 
is  made  to  appear  to  the  court  by  satisfactory  proof  that  it  is  to  the 
advantage  of  the  ward  to  engage  in  business,  the  court  under  such 


136  CODE    OF    CIVIL.    PROCEDURE    OF    THE    CANAL    ZONE. 

restrictions  as  it  deems  necessary  to  impose  for  the  protection  of  the 
ward,  may  authorize  the  guardian  to  entrust  him  with  a  portion  of 
the  ward's  estate,  in  no  event  to  exceed  one  half  thereof.  The  order 
of  the  court  shall  provide  that  the  guardian  at  his  next  accounting 
shall  produce  vouchers  or  other  satisfactory  evidence  showing  that 
the  authorized  amount  of  the  estate  has  been  so  invested. 

Sec  602.  Action  of  guardian  in  partition  proceedings. — -The  guard- 
ian may  join  in  and  assent  to  a  partition  of  the  real  or  personal 
estate  of  the  ward,  held  by  the  ward  jointly  or  in  common  with 
others,  after  leave  granted  by  the  judge  or  court  having  jurisdiction 
over  the  estate;  but  such  leave  shall  not  be  granted  except  after  a 
careful  investigation  of  the  necessity  and  propriety  of  the  proposed 
action  by  the  judge  or  court,  after  such  notice  to  relatives  of  the 
ward  as  the  judge  or  court  may  deem  necessary. 

Sec  603.  Inventory  and  accounts  of  guardians. — Every  guardian 
must  return  to  the  court  an  inventory  of  the  estate  of  his  ward  within 
three  months  after  his  appointment  and  annually  thereafter.  The 
court  or  judge  may  upon  application  made  for  that  purpose  by  any 
person  interested  compel  the  guardian  to  render  an  account  to  the 
court  of  the  estate  of  his  ward.  The  inventories  and  accounts  so 
to  be  returned  or  rendered  must  be  sworn  to  by  the  guardian.  All 
the  estate  of  the  ward  described  in  the  first  inventory  must  be 
sworn  to  by  the  guardian.  All  the  estate  of  the  ward  described  in 
the  first  inventory  must  be  appraised  by  two  appraisers  appointed 
and  sworn  by  the  judge.  Such  inventory,  with  the  appraisement  of 
the  property  therein  described,  must  be  recorded  by  the  clerk  of  the 
court  in  a  proper  book  kept  in  his  office  for  that  purpose.  Whenever 
any  other  property  of  the  ward  is  discovered,  not  included  in  the 
inventory  of  the  estate  already  returned,  and  whenever  any  other 
property  has  been  succeeded  to  or  acquired  by  any  ward,  for  his 
benefit,  the  like  proceedings  must  be  had  for  the  return  and  appraise- 
ment thereof  within  the  time  provided  for  the  first  inventory  and 
return. 

Sec  604.  Settlement  of  guardian's  accounts. — The  guardian  must 
upon  the  expiration  of  a  year,  from  the  time  of  his  appointment,  and 
as  often  thereafter  as  may  be  required,  present  his  account  to  the 
court  for  settlement  and  allowance. 

In  the  settlement  of  the  account,  the  guardian  shall  be  allowed  the 
amount  of  his  reasonable  expenses  incurred  in  the  execution  of  his 
trust  and  also  such  compensation  for  his  services  as  the  court,  in 
which  his  accounts  are  settled,  deems  just  and  reasonable;  but  not 
exceeding  two  dollars  per  day  for  the  time  actually  spent,  and  a 
commission  upon  disbursements  made  by  him  which  commission 
shall  be  the  same  as  that  in  this  Code  provided  for  disbursements 
made  by  executors  and  administrators.     But  in  cases  of  exceptional 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  187 

importance,  a  larger  compensation  may  be  allowed  for  the  services 
of  the  guardian. 

Sec.  605.  Sale  or  reinstatement  of  portions  of  estate. — When  the 
income  of  an  estate  under  guardianship  is  insufficient  to  maintain  the 
ward  and  his  family,  or  to  maintain  and  educate  the  ward  when  a 
minor,  or  when  it  appears  to  the  satisfaction  of  the  court  that  it  is  for 
the  benefit  of  the  ward  that  his  real  estate  or  some  part  thereof  should 
be  sold,  and  the  proceeds  thereof  put  out  at  interest,  or  invested  in 
some  productive  security,  or  in  the  improvement  or  security  of  other 
real  estate  of  the  ward,  the  guardian  may  present  to  the  judge  or 
court  b}'  which  he  was  appointed  a  verified  petition,  setting  forth  the 
condition  of  the  estate  of  his  ward  and  the  facts  and  circumstances  on 
which  the  petition  is  founded,  tending  to  show  the  necessity  or  ex- 
pediency of  the  sale.  If  it  appears  to  the  court  or  judge  that  it  is 
necessary  or  would  be  beneficial  to  the  ward  that  the  estate  or  some 
part  of  it  should  be  sold,  the  court  shall  thereupon  make  an  order 
directing  the  next  of  kin  to  the  ward,  and  all  persons  interested  in  the 
estate,  to  appear  before  the  judge  or  court,  at  the  time  and  place 
therein  specified,  not  less  than  four  nor  more  than  eight  weeks  from 
the  time  of  making  such  order,  to  show  cause  why  an  order  should  not 
be  granted  for  the  sale  of  such  estate.  If  it  appears  that  it  is  neces- 
sary, or  would  be  beneficial  to  the  ward,  to  sell  the  estate,  or  some 
portion  of  it,  the  court  shall  order  the  sale  to  be  made  and  the  pro- 
ceeds thereof  to  be  expended  for  the  maintenance  of  the  ward  and  his 
family,  or  the  education  of  the  ward,  if  a  minor,  or  for  the  putting  of 
the  same  out  at  interest,  or  the  investment  of  the  same  as  the  circum- 
stances may  require.  Upon  the  hearing,  the  court  or  judge  shall  hear 
the  proofs  and  allegation  of  the  petitioner  and  next  of  kin,  and  other 
persons  interested,  together  with  their  witnesses,  and  may  grant  or 
refuse  the  order,  as  the  best  interests  of  the  ward  may  require,  and 
make  such  order  as  to  costs  of  the  hearing  as  may  be  just. 

If  the  prayer  of  the  petition  is  granted,  the  order  of  sale  shall  specify 
the  causes  why  the  sale  is  necessary,  or  beneficial,  and  may  order  the 
sale  to  be  made ;  but  all  sales  of  wards'  estates  shall  be  made  at  public 
auction  to  the  highest  bidder  after  public  advertisement  for  such 
time  and  in  such  manner  as  the  court  may  direct,  unless  a  private  sale 
is  expressly  authorized  by  the  court;  and  no  sale  of  a  ward's  real 
estate  shall  be  valid  to  pass  title  thereto  until  the  same  be  confirmed 
by  the  court.  The  original  bond  of  the  guardian  shall  stand  as  se- 
curity for  the  proper  appropriation  of  the  sale,  but  the  judge  or  court 
may,  if  deemed  expedient,  require  an  additional  bond  as  a  condition 
for  the  granting  of  the  order  of  sale.  No  order  of  sale  granted  in 
pursuance  of  this  section  shall  continue  in  force  more  than  one  year 
after  granting  the  same,  without  a  sale  being  had.  The  petition, 
notice  to  heirs,  and  parties  interested,  and  order  of  the  court  or  judge 


138  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

in  the  premises,  shall  be  recorded  by  the  clerk  of  the  court  as  a  part 
of  the  record  of  the  guardianship. 

Sec.  606.  Sales  must  be  for  cash  or  other  adequate  security. — All 
sales  of  real  estate  of  wards  must  be  for  cash  or  for  part  cash  and 
part  deferred  payments,  the  credit  in  no  case  to  exceed  tAvo  years 
from  the  date  of  sale,  as  in  the  discretion  of  the  court  is  deemed  most 
beneficial  to  the  ward.  In  case  of  deferred  payments,  the  guardian 
must  receive  notes  for  the  deferred  payments  secured  by  the  retention 
of  a  lien  upon  the  property  conveyed  or  by  a  mortgage  thereon,  with 
such  additional  security,  if  any,  as  the  court  deems  necessary. 

Sec  607.  Reinvestment  of  the  proceeds  of  sale. — The  court  or 
judge  may  authorize  and  require  the  guardian  to  invest  the  proceeds 
of  sales  and  any  other  of  his  ward's  money  in  his  hands,  in  real 
estate,  or  in  any  other  manner  most  to  the  interest  of  all  concerned 
and  may  make  such  other  orders,  and  give  such  directions,  as  are 
needful  for  the  management,  investment,  and  disposition  of  the 
estate  and  effects,  as  circumstances  may  require. 

Sec  608.  Guardian  of  nonresident. — When  a  person  liable  to  be 
put  under  guardianship,  according  to  the  provision  of  this  chapter, 
resides  without  the  Canal  Zone  and  has  estate  therein  any  friend  of 
such  person,  or  any  one  interested  in  his  estate,  in  expectancy  or 
otherwise,  may  apply  to  the  circuit  in  which  there  is  any  estate  of 
such  absent  person,  for  the  appointment  of  a  guardian,  and  if,  after 
notice  given  to  all  interested  in  such  manner  as  such  court  orders,  by 
publication  or  otherwise,  and  a  full  hearing  and  examination,  it 
appear  proper,  a  guardian  for  such  absent  person  may  be  appointed ; 
and  every  guardian  appointed  under  this  section  shall  have  the 
same  powers,  and  perform  the  same  duties  with  respect  to  the  estate 
of  the  ward  found  within  the  Canal  Zone  and  with  respect  to  the 
person  of  the  ward,  if  he  shall  come  to  reside  therein,  as  are  pre- 
scribed with  respect  to  any  other  guardian  appointed  under  this 
chapter. 

Such  guardian  must  give  bond  in  the  manner  and  with  the  like  con- 
ditions hereinbefore  provided  for  other  guardians,  except  that  the 
provisions  respecting  the  inventory  and  the  disposition  of  the  estate 
and  effects,  and  accounts  to  be  rendered  by  the  guardian,  must  be 
confined  to  such  estate  and  effects  as  come  into  his  hands  in  the  Canal 
Zone. 

The  guardianship  which  is  here  first  lawfully  granted,  of  any  per- 
son residing  without  the  Canal  Zone  extends  to  all  the  estate  of  the 
ward  within  the  Canal  Zone  and  excludes  the  jurisdiction  of  the 
court  of  every  other  circuit. 

Sec  609.  Examination  of  persons  suspected  of  defrauding  wards 
or  concealing  property. — Upon  complaint  made  to  him  by  any  guard- 
ian, ward,  creditor,  or  other  persons  interested  in  the  estate  or  hav- 


CODE    OF    CIVIL    PROCEDURE    OP    THE    CANAL    ZONE.  1  39 

ing  a  prospective  interest  therein,  as  heir  or  otherwise  against  any- 
one suspected  of  having  concealed,  embezzled,  or  conveyed  away,  any 
money,  goods,  or  interests,  or  an  instrument  in  writing  belonging  to 
the  ward  or  to  his  estate,  the  Circuit  Court  or  judge  thereof  wherein 
the  guardian  was  appointed,  may  cite  such  suspected  person  to  ap- 
pear before  such  court  or  judge,  and  may  examine  him  touching  such 
money,  goods,  effects,  or  instrument,  and  may  make  such  order  as  is 
necessary  to  secure  the  estate  against  such  concealment,  embezzle- 
ment, or  conveyance. 

Sec.  610.  Removal  and  resignation  of  guardian.— -When  a  guard- 
ian, appointed  either  by  the  testator  or  a  court  becomes  insane  or 
otherwise  incapable  of  discharging  his  trust  or  unsuitable  therefor, 
or  has  wasted  or  mismanaged  the  estate,  or. failed  for  thirty  days  to 
render  an  account  or  make  a  return,  the  judge  or  court  may,  upon 
such  notice  to  the  guardian  as  the  judge  may  require,  remove  him, 
and  compel  him  to  surrender  the  estate  of  the  ward  to  the  person 
found  to  be  lawfully  entitled  thereto.  Every  guardian  may  resign 
when  it  appears  proper  to  allow  the  same.  Upon  the  resignation  or 
removal  of  a  guardian  as  herein  provided,  whether  appointed  by  will 
or  otherwise,  the  court  may  appoint  another  in  the  place  of  the 
guardian  who  resigns  or  was  removed. 

Sec  611.  Termination  of  guardianship. — The  marriage  of  a  minor 
ward  terminates  the  guardianship  of  the  person  of  such  ward,  but 
not  of  the  estate;  the  guardian  of  an  insane  or  other  person  may  be 
discharged  by  the  court  when  it  appears,  upon  the  application  of 
the  ward  or  otherwise,  that  the  guardianship  is  no  longer  necessary. 

Sec  612.  Neto  bond  may  be  required. — The  court  may  require  a 
new  bond  to  be  given  by  the  guardian  whenever  such  court  deems  it 
necessary,  and  may  discharge  the  existing  sureties  from  further  lia- 
bility, after  due  notice  given,  as  such  court  may  direct,  when  it  shall 
be  made  certain  that  no  injury  can  result  therefrom  to  those  inter- 
ested in  the  estate. 

Sec  613.  Guardian's  bond  to  be  filed  and  action  thereon. — Every 
bond  given  by  a  guardian  shall  be  filed  and  recorded  in  the  office  of 
the  clerk  of  the  Circuit  Court  of  the  circuit ;  and  in  case  of  a  breach 
of  the  conditions  thereof,  may  be  prosecuted  for  the  use  and  benefit 
of  the  ward,  or  of  any  person  legally  interested  in  the  estate. 

Sec  614.  Limitation  of  action  on  bond. — No  action  can  be  main- 
tained against  the  sureties  on  any  bond  given  by  a  guardian,  unless 
it  be  commenced  within  three  years  from  the  discharge  or  removal 
of  the  guardian;  but  if,  at  the  time  of  such  discharge,  the  person  en- 
titled to  bring  such  action  is  under  legal  disability  to  sue,  the  action 
may  be  commenced  at  any  time  within  three  years  after  such  disabil- 
ity is  removed. 


140  CODE    OF    CIVIL    PROCEDUBE    OP    THE    CANAL   ZONE. 

Sec.  615.  Limitations  of  action  for  the  recovery  of  property  sold. — 
No  action  for  the  recovery  of  any  estate  sold  by  a  guardian  can  be 
maintained  by  the  ward,  or  by  any  person  claiming  under  him,  unless 
it  is  commenced  within  three  years  next  after  the  termination  of  the 
guardianship,  or,  when  a  legal  disability  to  sue  exists  by  reason  of 
minority  or  otherwise,  at  the  time  when  the  cause  of  action  accrues, 
within  three  years  next  after  the  removal  of  such  disability. 

Sec  GIG.  Orders  and  guardianship  proceedings  to  be  matters  of 
record. — Orders  appointing  and  removing  guardians,  authorizing 
the  sale  of  property,  investment  of  the  proceeds  thereof,  and  settling 
of  accounts,  shall  be  made  matters  of  record  in  the  Circuit  Court. 

Sec  617.  Pending  guardianships  to  proceed  in  accordance  with 
Spanish  law,  with  certain  exceptions. — All  proceedings  in  cases  of 
guardianship  pending  in  the  Canal  Zone  shall  proceed  in  accordance 
with  the  existing  Panamanian  procedure  under  which  the  guardians 
were  appointed;  Prodded  nevertheless,  that  any  guardian  appointed 
under  existing  Panamanian  law  may  be  removed  in  accordance  with 
the  provisions  of  this  Code  and  his  successor  ma}''  be  appointed  as 
therein  provided,  and  every  successor  to  a  guardian  so  removed  shall, 
in  the  administration  of  the  person  or  estate,  or  either,  as  the  case 
may  be,  of  his  ward,  be  governed  by  the  provisions  of  this  Code. 

Chapter  XXXI. 

TRUSTS,    TRUSTEES,    AND    PROCEEDINGS    IN    RELATION    THERETO. 

Trusts  and  Trustees. 

Sec  618.  Procet  dings  when  trustee  under  will  is  necessary. — If 
a  testator  has  omitted  in  his  will  to  appoint  a  trustee  in  the  Canal 
Zone,  and  if  such  appointment  is  necessary  to  carry  into  effect  the 
provisions  of  a  will,  the  Circuit  Court  of  the  circuit  wherein  the 
property  that  would  be  affected  by  the  trust,  or  some  portion  thereof, 
is  situated  may,  after  notice  to  all  persons  interested,  appoint  a 
trustee,  who  shall  have  the  same  rights,  powers,  and  duties  and  in 
whom  the  estate  shall  vest,  in  the  same  manner  as  if  he  had  originally 
been  appointed  by  the  testator. 

Sec  619.  When  trustee  declines,  resigns,  dies,  of  is  removed.— 
When  a  trustee  under  a  written  instrument  declines,  resigns,  dies, 
or  is  removed  before  the  objects  of  the  trust  are  accomplished,  and 
when  no  adequate  provision  is  made  in  such  instrument  for  supply- 
ing the  vacancy,  the  Circuit  Court  wherein  the  will  was  established, 
if  such  instrument  was  a  will,  or,  if  it  was  an  instrument  other  than 
a  will,  the  Circuit  Court  wherein  the  property,  or  some  portion 
thereof,  affected  by  the  trust  is  situated  shall,  after  due  notice  to  all 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  141 

persons  interested,  appoint  a  new  trustee  to  act  alone  or  jointly  with 
the  others,  as  the  case  may  be. 

Sec.  620.  Powers  and  bond  of  new  trustee. — A  new  trustee  ap- 
pointed under  the  preceding  section  or  appointed  in  place  of  a  former 
trustee,  in ' conformity  with  a  written  instrument  creating-  a  trust, 
shall,  upon  giving  such  bond  as  may  be  required,  which  bond  shall 
be  of  sufficient  size  to  fully  protect  the  trust  estate,  and  shall  be 
determined  and  the  sureties  thereof  be  approved,  b}^  the  judge,  have 
and  exercise  the  same  powers,  rights,  and  duties,  whether  as  a  sole  or 
joint  trustee,  as  if  he  had  been  originally  appointed,  and  the  trust 
estate  shall  vest  in  him  in  like  manner  as  it  had  vested,  or  would  have 
vested,  in  the  trustee  in  whose  place  he  is  substituted;  and  the  court 
may  order  any  conveyances,  to  be  made  by  the  former  trustee  or  his 
representative,  or  by  the  other  remaining  trustees,  which  it  may  deem 
proper  and  convenient,  to  vest  the  trust  estate  in  the  new  trustee, 
either  alone  or  jointly  with  the  other. 

Sec.  621.  Trustee  appointed  abroad  must  hare  new  a ppohltment 
here. — When  lands  in  the  Canal  Zone  are  held  in  trust  for  persons 
resident  here,  by  a  trustee  who  derives  his  appointment  or  authority 
from  a  court  having  no  jurisdiction  within  the  Canal  Zone  such 
trustee  shall,  on  petition  made  to  the  Circuit  Court  in  the  circuit 
in  which  the  lands  lie.  and  after  due  notice  to  all  persons  interested, 
be  required  to  take  out  letters  of  trust  from  said  court ;  and  upon  his 
neglect  or  refusal  to  comply  with  such  order  the  court  shall  declare 
such  trust  vacant,  and  shall  appoint  a  new  trustee  in  whom  the  trust 
estate  shall  vest  in  like  manner  as  if  he  had  been  originally  appointed, 
or  authorized  by  said  court. 

Sec.  622.  Notice  to  trustee. — The  notice  to  the  trustee  required  by 
the  preceding  section,  may  be  given  by  serving  on  him  a  copy  of  the 
petition,  and  of  the  citation  of  the  court  issued  thereon,  fourteen 
daj-s  at  least  before  the  time  fixed  for  the  return  of  such  citation,  or 
by  such  other  notice  as  the  court  may  order. 

Sec.  623.  Removal  of  trustee. — Circuit  Courts  in  the  several  cir- 
cuits may.  upon  application  of  the  parties  beneficially  interested  in 
the  trust,  remove  a  trustee  under  a  written  instrument,  if  such  re- 
moval appears  essential  in  the  interests  of  the  applicant.  The  trus- 
tee shall  have  notice  of  the  application  and  opportunity  to  be  heard 
and  show  cause  why  the  removal  should  not  be  made.  The  court 
may  also,  after  notice  to  the  trustee  and  to  all  other  persons  interested, 
remove  any  such  trustee  who  has  become  insane  or  otherwise  in- 
capable of  discharging  his  trust  or  evidently  unsuitable  therefor. 

Sec  024.  Resignation  of  trustee. — Every  trustee  under  a  written 
instrument,  and  every  trustee  appointed  by  the  court  may,  upon  his 
own  request,  resign  his  trust  if  it  appears  to  the  court  proper  to  allow 
such  resignation. 

803a— 07— m 10 


142  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL,   ZONE. 

Sec.  625.  Executor,  etc.,  of  former  trustee  not  bound  to  accept 
trust. — No  person  succeeding  to  a  trust  as  executor  or  administrator 
of  a  former  trustee  shall  be  required  to  accept  such  trust. 

Sec  626.  Bonds  of  trustees. — Every  trustee  under  a  will  and  every 
trustee  appointed  by  the  court,  before  entering  on  the  duties  of  his 
trust  shall,  unless  it  is  otherwise  specially  provided  by  law,  give  bond 
with  sufficient  surety  or  sureties,  to  be  approved  by  the  judge,  in  such 
sum  as  the  judge  or  court  having  jurisdiction  of  the  trust  may  order, 
payable  to  the  government  of  the  Canal  Zone  and  available  for  the 
protection  of  any  party  in  interest.  The  bond  shall  be  lodged  with 
the  clerk  of  the  Circuit  Court  and  be  by  him  recorded  in  the  books 
of  the  office;  and  the  following  conditions  shall  be  deemed  to  be  a 
part  of  the  bond,  whether  written  therein  or  not: 

1.  To  make  and  return  to  the  court,  at  such  time  as  it  may  order, 
a  true  inventory  of  all  the  real  and  personal  estate  belonging  to  him 
as  trustee,  which  at  the  time  of  the  making  of  such  inventory  shall 
have  come  to  his  possession  or  knowledge; 

2.  To  manage  and  dispose  of  all  such  estate,  and  faithfully  to 
discharge  his  trust  in  relation  thereto  according  to  law  and  the  will 
of  the  testator,  or  the  provisions  of  the  instrument  under  which  he 
is  appointed; 

3.  To  render  upon  oath  at  least  once  a  year  until  his  trust  is  ful- 
filled, unless  he  is  excused  therefrom  in  any  year  by  the  court  a  true 
account  of  the  property  in  his  hands,  and  of  the  management  and 
disposition  thereof,  and  also  to  render  such  account  at  such  other 
times  as  said  court  may  order; 

4.  At  the  expiration  of  his  trust  to  settle  his  account  in  full  and 
to  pay  over  and  deliver  all  the  estate  remaining  in  his  hands,  or  due 
from  him  on  such  settlement,  to  the  person  or  persons  entitled  there- 
to. But  when  the  trustee  is  appointed  as  a  successor  to  a  prior  trustee 
the  court  may  dispense  with  the  making  of  return  of  an  inventory, 
if  it  appears  to  be  unnecessary,  in  such  case  the  conditions  of  the 
bond  shall  be  altered  accordingly. 

Sec.  627.  Appraised. — When  an  inventory  is  required  to  be  re- 
turned by  a  trustee,  the  estate  and  effects  shall  be  appraised  by  two 
suitable  persons  who  shall  be  appointed  by  the  court,  and  sworn  to 
make  a  just  appraisal  of  the  estate  and  effects  belonging  to  the  trust. 

Sec  628.  When  bond  may  be  dispensed  with. — A  trustee  under  a 
will,  except  as  hereinafter  provided  shall  be  exempt  from  giving  a 
surety  or  sureties  on  his  bond,  when  the  testator  has  ordered  or 
requested  such  exemption,  and  any  trustee  shall,  except  as  herein- 
after provided,  be  so  exempt  when  all  persons  beneficially  interested 
in  the  trust,  being  of  full  age.  request  such  exemption;  but  the 
trustee  shall,  in  all  eases,  give  his  own  personal  bond:  Provided, 
nevertheless,  That  any  trustee  either  under  a  will  or  appointed  by 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  143 

the  court  or  judge  who  has  not  given  a  bond  with  surety  or  sureties, 
may  be  required  by  the  court  or  judge  at  any  time,  when  it  deems  it 
proper,  to  give  such  bond. 

Sec.  629.  Neglect  to  give  bond. — Any  trustee  who  neglects  to  give 
bond  in  accordance  with  the  preceding  section  shall  be  considered 
to  have  declined  or  resigned  the  trust. 

Sec  630.  Sale  of  trust  estate. — When  the  sale  and  conveyance  or 
transfer  of  any  real  or  personal  estate  held  in  trust  appears  to  be 
necessary  or  expedient,  the  court  having  jurisdiction  of  the  trust 
may,  after  notice  and  other  proceedings,  when  required,  order  such 
sale  and  conveyance,  and  transfer,  to  be  made,  and  the  reinvestment 
and  application  of  the  proceeds  of  such  sale  in  such  manner  as  will 
best  effect  the  objects  of  the  trust.  The  application  to  the  court, 
notice,  hearing,  order  of  sale,  and  record  of  proceedings,  shall  all  be 
in  the  manner  hereinbefore  provided  with  reference  to  the  sale  by 
a  guardian  of  the  property  of  minors  or  other  wards. 

Sec.  631.  General  jurisdiction  over  trusts. — Circuit  Courts  in  the 
several  circuits  may  hear  and  determine  all  matters  in  relation  to 
trusts  created  by  will,  not  particularly  mentioned  in  this  chapter, 
and  shall  have  jurisdiction  over  all  matters  relating  to  the  termina- 
tion of  trusts  created  by  will,  deed,  or  other  instrument  of  like  nature. 
When  the  Circuit  Court  of  any  circuit  has  lawfully  taken  jurisdic- 
tion of  any  trust  estate,  its  jurisdiction  shall  be  exclusive,  and  shall 
exclude  the  Circuit  Court  of  any  other  circuit  from  taking  juris- 
diction of  any  matter  subsequently  arising  in  relation  to  the  same 
trust. 

Chapter  XXXII. 

ESTATES  OF  deceased  persons. 
Settlement  of  estates  without  legal  proceedings. 

Sec.  632.  Settlement  of  intestate  estates,  without  legal  proceeding, 
in  certain  cases. — Whenever  all  the  heirs  of  a  deceased  person  are 
of  lawful  age  and  legal  capacity,  and  there  are  no  debts  due  from  the 
intestate  estate,  or  all  the  debts  have  been  paid  by  the  heirs,  the  heirs 
may,  by  a  family  council  as  known  under  Panamanian  law,  or  by 
agreement  between  themselves,  duly  executed  in  writing,  apportion 
and  divide  the  estate  among  themselves,  as  they  may  see  fit,  without 
proceedings  in  court. 

Sec.  633.  In  such  case  distributees  liable  for  debts. — But  if  it  shall 
appear,  at  any  time  within  two  years  after  such  settlement  and  dis- 
tribution of  the  estate,  that  there  are  debts  outstanding  against  the 
estate  which  have  not  been  paid,  any  creditor  may  compel  the  set- 
tlement of  the  estate  in  the  courts  in  the  manner  hereinafter  provided, 
unless  his  debts  shall  be  paid,  with  interest;  and  the  administrator 


144  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

appointed  by  the  court  may  recover  the  assets  of  the  estate  from  those 
who  have  received  them,  for  the  purpose  of  paying-  the  debts;  and 
the  real  estate  belonging  to  the  deceased  shall  remain  charged  with 
the  liability  to  creditors  for  the  full  period  of  two  years  after  such 
distribution,  notwithstanding  any  transfers  thereof  that  may  have 
been  made. 

Chapter  XXXIII. 

JURISDICTION    OVER    ESTATES    OF    DECEASED    PERSONS. 

Sec.  634.  The  word  jurisdiction. — Circuit  Courts  shall  have  juris- 
diction in  all  matters  relating  to  the  settlement  of  estates  and 
probate  of  wills  of  deceased  persons,  the  appointment  and  removal 
of  guardians  and  trustees,  and  the  powers,  duties,  and  rights  of 
guardians  and  wards,  trustees,  and  cestuis  que  trustent.  This  juris- 
diction shall  be  called  probate  jurisdiction. 

Sec  635.  Where  resident's  estate  settled. — If  an  inhabitant  of 
the  Canal  Zone  dies,  whether  a  citizen  or  alien,  his  will  shall  be 
proved,  or  letters  of  administration  granted,  and  his  estate  settled, 
in  the  Circuit  Court  in  the  Circuit  in  which  he  resided  at  the  time 
of  his  death. 

Sec.  636.  Where  nonresident'1  s  estate  settled. — If  a  person  resided 
out  of  the  Canal  Zone  at  the  time  of  his  death,  his  will  shall  be 
allowed  and  recorded,  and  letters  testamentary  or  of  administration 
shall  be  granted  in  the  Circuit  Court  of  any  Circuit  in  which  he 
lias  estate. 

Sec.  637.  The  court  once  taking,  to  retain,  jurisdiction. — When 
a  Circuit  Court  has  first  taken  cognizance  of  the  settlement  of  the 
estate  of  a  deceased  person,  as  mentioned  in  the  preceding  sections, 
such  court  shall  have  jurisdiction  of  the  disposition  and  settlement 
of  such  estate,  to  the  exclusion  of  all  other  courts. 

Sec.  638.  Jurisdiction,  when  may  be  contested. — The  jurisdiction 
assumed  by  a  Circuit  Court,  for  the  settlement  of  an  estate,  so 
far  as  it  depends  on  the  place  of  residence  of  a  person,  or  of  the 
location  of  his  estate,  shall  not  be  contested  in  a  suit  or  proceeding, 
except  in  an  appeal  from  that  court,  in  the  original  case,  or  when 
the  want  of  jurisdiction  appears  on  the  record. 

Sec.  639.  The  clerk. — The  clerk  of  the  court  shall  keep  a  record  of 
each  order,  sentence,  or  decree  of  the  court,  and  of  other  things 
proper  to  be  recorded  in  the  settlement  of  estates,  and  give  attested 
copies  of  files,  records,  and  proceedings  of  the  court  as  in  other 
cases,  on  the  fees  being  paid. 

Sec.  640.  Their  copies  and  certificates  to  he  evidence. — Copies, 
when  attested,  shall  be  evidence  in  all  courts:  and  certificates  of 
the  allowance  of  a  will,  of  administration,  of  guardianship,  or  of 


CODE    OF    CIVIL.   PROCEDURE    OF    THE    CAN  AX,    ZONE.  145 

trusteeship,  attested  by  the  clerk,  may  be  given  in  evidence  and 
have  the  same  effect  as  an  original  record  of  the  allowance  of  a 
will,  letter  of  administration,  letters  of  guardianship  or  trusteeship. 

Sec.  641.  Clerk  to  sign  protest,  and  so  forth. — The  clerk  may, 
under  the  direction  of  the  judge,  make  out  and  sign  letters  of  admin- 
istration, guardianship,  and  trusteeship,  and  the  warrants  or  other 
process  or  written  instruments  issuing  from  the  court;  but  any  act 
required  to  be  performed  by  the  clerk  shall  be  valid  if  performed 
by  the  judge. 

Sec  <*4i2.  Additional  duties  of  clerk  in  absence  of  judge. — -In  the 
absence  of  the  judge,  the  clerk  may  perform  all  the  duties  of  the 
judge  in  receiving  applications,  petitions,  inventories,  reports  and 
the  issuance  of  all  orders  and  the  notices  that  follow  as  a  matter  of 
course  under  the  directions  of  the  law,  and  may  also,  when  directed 
so, to  do  by  the  judge,  receive  the  accounts  of  executors,  adminis- 
trators, and  trustees,  and  all  evidence  appertaining  to  them,  and 
offered  on  hearings  in  relation  to  them,  or  in  relation  to  any  other 
matters  appertaining  to  the  settlement  of  estate  of  deceased  persons, 
or  guardianship,  or  trusteeship,  and  forthwith  transmit  such  reports, 
accounts,  and  testimony  to  the  judge,  together  with  his  findings  in 
relation  to  the  same,  if  the  judge  shall  direct  him  to  make  findings  and 
include  the  same  in  his  report. 

Sec.  643.  Proceedings  when  judge  disqualified. — When  a  judg<>. 
his  wife,  or  child,  is  an  heir  or  legatee,  or  when  he  is  an  executor 
or  administrator  of  the  estate  of  a  deceased  person,  or  is  interested 
as  a  creditor  or  otherwise  in  a  question  to  be  decided  by  the  court, 
he  shall  not  act  as  judge,  and  in  such  case  the  Supreme  Court  shall 
designate  some  other  judge  to  act  in  his  place  in  relation  to  matters 
wherein  he  is  disqualified  after  the  manner  hereinbefore  provided. 

Sec.  644.  Fees,  and  the  <i<<-<>unt  tliereof. — The  clerk,  under  the 
direction  of  the  judge,  shall  keep  a  book  in  which  shall  be  entered 
the  items  of  fees  which  have  accrued  for  transaction  of  business 
covered  by  the  provisions  of  this  chapter,  for  which  fees  are  payable 
specifying  for  what  business  each  item  of  fees  has  accrued.  Receipts 
shall  be  given  for  all  fees  so  received  and  they  shall  be  accounted 
for  in  the  manner  provided  in  relation  to  the  fees  of  clerks  of  courts 
in  actions.  The  book  of  fees  kept  by  the  clerk  shall  be  subject  to  the 
inspection  of  auditing  officers  and  others  interested  therein. 

Sec.  645.  May  issue  process,  and  so  forth. — In  the  exercise  of 
probate  jurisdiction  Circuit  Courts  may  issue  warrants  and  process 
in  conformity  with  the  rules  of  law  necessary  to  compel  the  attend- 
ance of  witnesses  or  to  cany  into  effect  the  orders,  sentences,  or 
decrees  of  such  courts,  or  the  powers  granted  them  by  law. 


146  CODE    OF    CIVIL   PROCEDURE    OP    THE    CANAL   ZONE. 

Sec.  646.  May  enforce  orders  by  commitment. — If  a  person  does 
not  perform  the  order,  sentence,  or  decree  of  the  court  in  the  exercise 
of  its  probate  jurisdiction,  it  may  issue  a  warrant  for  the  apprehen- 
sion and  imprisonment  of  such  person  until  he  performs  such  order, 
sentence,  or  decree,  or  is  released  by  law :  Provided,  That  nothing  in 
this  section  shall  be  construed  to  authorize  imprisonment  for  ordinary 
debt. 

Sec  647.  Depositions. — Depositions  taken  in  accordance  with  the 
provisions  and  under  the  circumstances  provided  in  this  Code  for  the 
taking  of  depositions  may  be  received  in  probate  proceedings. 

Sec  648.  Costs. — When  a  person  is  cited,  on  complaint  of  another, 
to  appear  before  the  court  to  be  examined  in  probate  proceedings, 
the  court  may,  in  its  discretion,  tax  costs  for  the  person  so  cited  and 
issue  execution  therefor,  allowing  the  same  fees  as  for  witnesses  in 
Circuit  Courts. 

Chapter  XXXIV. 

WILLS  AND  THE  ALLOWANCE  THEREOF,  AND  DUTIES  OF  EXECUTORS. 

Sec  649.  Who  may  make  wills. — Every  person  of  age  and  sound 
mind  may  devise,  bequeath,  and  dispose  of  his  estate,  real  and  per- 
sonal, and  of  any  right  or  interest  which  he  has  in  his  real  or  personal 
estate,  by  his  last  will  and  testament ;  and  the  words  "  every  person," 
shall  include  married  women :  Provided,  That  no  person  can  by  will 
deprive  a  husband,  or  wife,  or  heir  of  such  interest  in  his  estate  as 
the  law  provides  shall  appertain  to  such  husband,  wife,  or  heir,  not- 
withstanding the  execution  of  a  will. 

Sec  650.  Peal  estate  acquired  afterwards  may  pass  by  will. — Real 
estate  acquired  after  making  a  will  shall  pass  thereby,  as  if  the  tes- 
tator had  possessed  it  at  the  time  of  making  the  will,  if  it  appears  by 
the  will  that  such  was  his  intention. 

Sec  651.  Whole  interest  to  pass,  and  so  forth. — Every  devise  of 
land  by  will  shall  convey  all  the  estate  which  the  devisor  could  devise 
in  such  land  unless  it  clearly  appears  by  the  will  that  he  intended  to 
convey  a  less  estate. 

Sec  652.  Spanish  wills. — A  will  executed  by  a  Panamanian,  or  a 
resident  of  the  Canal  Zone  shall  also  be  valid  and  allowed,  if  duly 
executed  in  accordance  with  the  Civil  Code  now  in  force  in  the  Canal 
Zone,  whether  such  will  be  an  open  will  or  a  sealed  will,  or  one  termed 
a  verbal  will  under  that  law,  but  the  provisions  of  this  Code  shall 
control  as  to  the  testamentary  capacity  of  the  testator,  and  the  com- 
petency of  attesting  witnesses,  and  all  such  wills  must  be  established 
and  the  estate  administered  in  accordance  with  the  provisions  of  this 
Code. 

Sec  653.  Requisites  of  a  will. — No  will,  except  as  provided  in  the 
preceding  section,  shall  be  valid  to  pass  any  estate,  real  or  personal, 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  147 

nor  charge  or  affect  the  same  unless  it  be  in  writing  and  signed  by 
the  testator,  or  by  the  testator's  name  written  by  some  other  person 
in  his  presence,  and  by  his  express  direction,  and  attested  and  sub- 
scribed by  three  or  more  credible  witnesses  in  the  presence  of  the  tes- 
tator and  of  each  other.  The  attestation  shall  state  the  fact  that  the 
testator  signed  the  will,  or  caused  it  to  be  signed  by  some  other  person, 
at  his  express  direction,  in  the  presence  of  three  witnesses,  and  that 
they  attested  and  subscribed  it  in  his  presence  and  in  the  presence  of 
each  other.  But  the  absence  of  such  form  of  attestation  shall  not 
render  the  will  invalid  if  it  is  proven  that  the  will  was  in  fact  signed 
and  attested  as  in  this  section  provided. 

Sec.  654.  Custody  of  a  will  after  its  execution. — After  the  due 
execution  of  a  will,  the  testator  may  retain  it  in  his  own  possession, 
or  he  may  deposit  it  with  any  other  person,  official  or  corporation, 
to  hold  for  him;  but  it  shall  always  be  subject  to  his  control  and 
direction  and  right  of  possession,  down  to  the  time  of  his  death. 

Sec  655.  Who  are  competent  witnesses. — Any  person  of  sound 
mind,  and  of  the  age  of  eighteen  years  or  more,  and  not  blind, 
may  be  a  witness  at  the  execution  of  a  will. 

Sec  656.  Subsequent  incompetency  immaterial. — If  the  witnesses 
attesting  the  execution  of  the  will  are  competent  at  the  time  of 
attesting,  their  becoming  subsequently  incompetent  shall  not  prevent 
the  allowance  of  the  will. 

Sec  657.  When  devise  or  legacy  to  witness  void. — If  a  person 
attests  the  execution  of  a  will,  to  whom  or  to  whose  wife  or  husband, 
or  parent,  or  child,  a  beneficial  devise,  legacy,  or  interest,  of  or 
affecting  real  or  personal  estate,  is  given  by  such  will,  such  devise, 
legacy,  or  interest  shall,  so  far  only  as  concerns  such  person,  or  the 
wife  or  husband,  or  parent,  or  child,  be  void,  unless  there  are  three 
other  competent  witnesses  to  such  will,  and  such  person  so  attesting 
shall  be  admitted  as  a  witness  as  if  such  devise,  legacy,  or  interest 
had  not  been  made  or  given.  But  a  mere  charge  on  the  real  or  per- 
sonal estate  of  the  testator,  for  the  payment  of  debts,  shall  not 
prevent  his  creditors  from  being  competent  witnesses  to  his  will. 

Sec  658.  Will,  how  revoked. — No  will  shall  be  revoked,  except  by 
implication  of  law,  otherwise  than  by  some  will,  codicil,  or  other 
writing  executed  as  provided  in  case  of  wills;  or  by  burning,  tear- 
ing, cancelling,  or  obliterating  the  same  with  the  intention  of  revok- 
ing it,  by  the  testator  himself,  or  by  some  other  person  in  his  presence, 
and  by  his  express  direction. 

If  burned,  torn,  canceled,  or  obliterated  by  some  other  person, 
without  the  express  direction  of  the  testator,  the  will  may  still  be 
established  by  the  court,  and  the  estate  distributed  in  accordance 
therewith,  if  its  contents,  and  due  execution,  and  the   fact  of  its 


148  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

unauthorized  destruction,  cancellation,  or  obliteration  is  established 
by  full  evidence  to  the  satisfaction  of  the  court. 

Sec.  659.  To  he  recorded  with  registrar  of  hind  titles. — Attested 
copies  of  wills  devising  real  estate  and  the  allowance  thereof  by  the 
court,  shall  be  recorded  in  the  office  of  the  Registrar  of  land  titles 
of  the  Circuit  in  which  the  lands  lie. 

Sec.  660.  Allowance  necessary,  and  conclusive  as  to  execution. — 
Xo  will  shall  pass  either  the  real  or  personal  estate,  unless  it  be 
proved  and  allowed  in  the  Circuit  Court,  or  by  appeal  to  the  Supreme 
Court ;  and  the  allowance  by  the  court  of  a  will  of  real  or  personal 
estate  shall  be  conclusive  as  to  its  due  execution. 

Sec.  661.  Custodian  of  will  to  deli  re/1. — The  person  who  has  the 
custody  of  a  will,  shall,  within  thirty  days  after  he  knows  of  the 
death  of  the  testator,  deliver  the  will  into  the  court  which  has  juris- 
diction, or  to  the  executor  named  in  the  will. 

Sec.  662.  Executor  to  present  trill  and  accept  or  refuse  trust. — A 
person  named  as  executor  in  a  will,  shall  within  thirty  days  after 
he  knows  of  the  death  of  the  testator,  or  within  thirty  days  after 
he  knows  that  he  is  named  executor,  if  he  obtained  such  knowledge 
after  knowing  of  the  death  of  the  testator,  present  such  will  to 
the  court  which  has  jursidiction,  unless  the  will  has  been  otherwise 
returned  to  said  court,  and  shall,  within  such  period,  signify  to  the 
court  his  acceptance  of  the  trust,  or  make  known  in  writing  his 
refusal  to  accept  it. 

Sec.  663.  Penalty. — A  person  who  neglects  any  of  the  duties- 
required  in  the  two  preceding  sections,  unless  he  gives  a  satisfac- 
tory excuse  to  the  court,  shall  be  subject  to  a  fine  not  exceeding  one 
thousand  dollars. 

Sec.  661.  Person  retaining  will  may  be  committed. — If  a  person 
having  custody  of  a  will  after  the  death  of  the  testator  neglects 
without  reasonable  cause  to  deliver  the  same  to  the  court  having 
jurisdiction,  after  notice  by  the  court  so  to  do,  he  may  be  committed 
to  prison  by  a  warrant  issued  by  the  court,  and  there  kept  in  close 
confinement  until  he  delivers  the  will. 

Sec  665.  Court  to  appoint  hearing  on  will. — AVhen  a  will  is  deliv- 
ered to  the  court  having  jurisdiction  of  the  same,  the  court  shall 
appoint  a  time  and  place  Avhen  all  concerned  may  appear  to  contest 
the  allowance  of  the  will,  and  shall  cause  public  notice  thereof  to  be 
given  by  publication  in  such  newspaper  or  newspapers  as  the  court 
directs  of  general  circulation  in  the  circuit,  two  weeks  successively. 
previous  to  the  time  appointed,  and  no  will  shall  be  allowed  until 
such  notice  has  been  given.  At  the  hearing  all  testimony  shall  be 
taken  under  oath,  reduced  to  writing  and  signed  by  the  witnesses. 

Sec.  666.  How  approved  when  not  contested . — If  no  person  appears 
to  contest  allowance,  at  the  times  appointed,  the  court  may  grant 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  149 

allowance  thereof,  on  the  testimony  of  one  of  the  subscribing  wit- 
nesses only,  if  such  witness  testify  that  the  will  was  executed  as  is 
required  in  this  chapter. 

Sec.  667.  When  the  witness  does  not  remember  signing. — A  will 
may  be  allowed  notwithstanding  the  fact  that  one  or  more  of  the 
witnesses  do  not  remember  the  fact  of  having  attested  it,  provided 
the  court  is  satisfied  from  all  the  evidence  that  the  will  was  executed 
and  attested  in  the  manner  herein  required. 

Sec.  668.  When  the  witness  does  not  reside  in  the  Canal  Zone. — 
Tf  none  of  the  subscribing  witnesses  reside  in  the  Canal  Zone  at  the 
time  of  the  death  of  the  testator,  the  court  may  admit  the  testimony 
of  other  witnesses  to  prove  the  sanity  of  the  testator,  and  the  due 
execution  of  the  will,  although  the  subscribing  witnesses  are  living; 
and  as  evidence  of  the  execution  of  the  will,  it  may  admit  proof  of 
the  handwriting  of  the  testator  and  of  the  subscribing  witnesses,  in 
cases  where  the  names  of  the  witnesses  are  subscribed  to  a  certificate 
stating  that  the  will  was  executed  as  required  in  this  chapter.  In 
case  one  or  more  of  the  subscribing  witnesses  has  deceased,  the  sanity 
of  the  testator  and  the  due  execution  of  the  will  may  also  be  proven 
in  the  manner  in  this  section  hereinbefore  provided. 

Sec.  669.  Ground*  for  disallowing  the  trill. — The  will  shall  be 
disallowed  in  either  of  the  following  cases : 

1.  If  not  executed  and  attested  as  in  this  Code  or  in  the  Civil 
Code  provided; 

2.  If  the  testator  was  insane  or  otherwise  mentally  incapable  of  the 
execution  of  such  an  instrument  at  the  time  of  its  execution ; 

3.  If  it  was  executed  under  duress,  or  the  influence  of  fear,  or 
threats ; 

4.  If  it  was  procured  by  undue  and  improper  pressure  and  influ- 
ence, on  the  part  of  the  beneficiary,  or  some  other  person  for  his 
benefit ; 

5.  If  the  signature  of  the  testator  was  procured  by  fraud  or  trick, 
and  he  did  not  intend  that  the  instrument  should  be  his  will  at  the 
time  of  fixing  his  signature  thereto. 

Sec.  670.  Will  made  out  of  the  Canal  Zone. — A  will  made  out  of 
the  Canal  Zone  which  might  be  proved  and  allowed  by  the  laws  of 
the  state  or  country  in  which  it  was  made,  may  be  proved,  allowed, 
and  recorded  in  the  Canal  Zone,  and  shall  have  the  same  effect  as  if 
executed  according  to  the  laws  of  the  Zone. 

Sec.  671.  Will  made  here  by  alien. — A  will  made  within  the 
Canal  Zone  by  a  citizen  or  subject  of  another  state  or  country, 
which  is  executed  in  accordance  with  the  law  of  the  state  or  country 
of  which  he  is  a  citizen  or  subject,  and  which  might  be  proved  and 
allowed  by  the  law  of  his  own  state  or  country,  may  be  proved, 


150  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

allowed,  and  recorded  in  the  Canal  Zone,  and  shall  have  the  same 
effect  as  if  executed  according  to  the  laws  of  the  Zone. 

Sec.  672.  Wills  proved  outside  my  he  allowed  here. — Wills  provod 
and  allowed  in  the  United  States,  or  any  State  or  Territory  thereof, 
or  in  a  foreign  state  or  country,  according  to  the  law  of  such  State, 
Territory,  or  country,  may  be  allowed,  filed,  and  recorded  in  the 
Circuit  Court  of  the  circuit  in  which  the  testator  has  real  or  personal 
estate  on  which  such  will  may  operate. 

Sec  673.  Hearing  on  question  of  allowance. — "When  a  copy  of 
such  will,  and  the  probate  and  allowance  thereof,  duly  authenticated, 
is  produced  by  the  executor,  or  other  person  interested,  to  the  Circuit 
Court,  such  court  shall  appoint  a  time  and  place  of  hearing,  and 
notice  shall  be  given  as  in  case  of  an  original  will  presented  for 
allowance. 

Sec  674.  Court  may  order  it  recorded. — If  it  appears  to  the  court 
on  the  hearing,  that  the  instrument  ought  to  be  allowed  in  the  Canal 
Zone,  as  the  last  will  and  testament  of  the  deceased,  it  shall  be 
allowed,  and  a  copy  shall  be  filed  and  recorded,  and  the  will  shall 
have  the  same  effect  as  if  originally  proved  and  allowed  in  the  same 
court. 

Sec  67f>.  Estate,  how  administered. — When  a  will  is  thus  allowed, 
the  court  shall  grant  letters  testamentary,  or  letters  of  administration 
with  the  will  annexed,  and  such  letters  testamentary  or  of  administra- 
tion, shall  extend  to  all  the  estate  of  the  testator  in  the  Canal  Zone. 
Such  estate,  after  the  payment  of  just  debts  and  expenses  of  adminis- 
tration, shall  be  disposed  of  according  to  such  will,  so  far  as  such  will 
may  operate  upon  it;  and  the  residue,  if  any,  shall  be  disposed  of  as 
provided  by  law  in  cases  of  estates  in  the  Zone  belonging  to  persons 
who  are  inhabitants  of  another  state  or  country. 

EXECUTORS  AND  ADMINISTRATORS,  WHO  MAY  ACT,  AND  THEIR  BONDS. 

Sec  676.  When  will  proved,  letters  to  issue  to  executor. — When  a 
will  has  been  proved  and  allowed,  the  court  shall  issue  letters  testa- 
mentary thereon  to  the  person  named  as  executor  therein,  if  he  accepts 
the  trust  and  gives  the  bond  as  required  by  law.  The  term  "  ex- 
ecutor "  in  this  Code  shall  include  an  administrator. 

Sec  677.  To  whom  administration  granted. — If  no  executor  is 
named  in  the  will,  or  if  a  person  dies  intestate,  administration  shall 
be  granted : 

1.  To  the  surviving  husband  or  wife,  as  the  case  may  be,  or  next  of 
kin,  or  both,  in  the  discretion  of  the  court,  or  to  such  person  as  such 
surviving  husband  or  wife,  or  next  of  kin,  requests  to  have  appointed, 
if  suitable  to  discharge  the  trust ; 

2.  If  such  surviving  husband  or  wife,  as  the  case  may  be,  or  next 


CODE    OF    CIVIL   PROCEDURE    OP    THE    CANAL    ZONE.  151 

of  kin,  or  the  person  selected  by  them,  be  unsuitable,  or  if  the  hus- 
band or  widow,  or  next  of  kin  neglect  for  thirty  days  after  the  death 
of  the  person  to  apply  for  administration,  or  to  request  that  adminis- 
tration be  granted  to  some  other  person,  it  may  be  granted  to  one  or 
more  of  the  principal  creditors,  if  competent  and  willing  to  serve ; 

3.  If  there  is  no  such  creditor  competent  and  willing  to  serve,  the 
same  may  be  committed  to  such  other  person  as  the  court  may  ap- 
point. 

Sec.  678.  Bond,  generally.— Before  an  executor,  or  an  adminis- 
trator, enters  upon  the  execution  of  his  trust,  and  letters  testamentary 
or  of  administration  are  issued,  the  person  to  whom  they  are  issued 
shall  give  a  bond  in  such  reasonable  sum  as  the  court  directs,  with  one 
or  more  sufficient  sureties,  conditioned  as  follows : 

1.  To  make  and  return  to  the  court,  within  three  months,  a  true 
and  perfect  inventory  of  all  goods,  chattels,  rights,  credits,  and  estate 
of  the  deceased,  which  shall  come  to  his  possession  or  knowledge,  or 
to  the  possession  of  any  other  person  for  him; 

2.  To  administer  according  to  law,  and,  if  an  executor,  according 
to  the  will  of  the  testator,  all  goods,  chattels,  rights,  credits,  and 
estate,  which  shall  at  any  time  come  to  his  possession,  or  to  the  pos- 
session of  any  other  person  for  him,  and  out  of  the  same  to  pay  and 
discharge  all  debts,  legacies,  and  charges  on  the  same,  or  such  divi- 
dends thereon  as  shall  be  decreed  by  the  court ; 

3.  To  render  a  true  and  just  account  of  his  administration  to  the 
court  within  one  year,  and  at  any  other  time  when  required  by  the 
court ; 

4.  To  perform  all  orders  and  decrees  of  the  court  by  him  to  be  per- 
formed. 

Sec  679.  Bond  of  executor  who  is  residuary  legatee. — An  executor 
who  is  a  residuary  legatee,  instead  of  the  bond  prescribed  in  the  pre- 
ceding section,  may  give  a  bond  in  such  sum,  and  with  such  sureties, 
as  the  court  directs,  with  the  condition  only  to  pay  the  debts  and 
legacies  of  the  testator,  and  in  such  case  he  shall  not  be  required  to 
return  an  inventory.  If  the  testator  in  his  will  directs  that  no  bond, 
or  only  the  individual  bond  of  the  executor  be  required,  instead  of 
the  bond  prescribed  in  the  preceding  section,  he  may  give  his  indi- 
vidual bond,  as  directed  in  the  will ;  but  he  shall  also  give  a  bond  in 
such  sum  and  with  such  surety  as  the  court  requires,  with  the  con- 
dition only  to  pay  the  debts  of  the  testator;  but  the  court  may  re- 
quire of  the  executor  a  further  bond,  in  case  of  a  subsequent  change 
in  his  circumstances,  and  for  other  sufficient  cause,  with  the  second, 
third,  and  fourth  conditions  named  in  the  preceding  section. 

Sec.  680.  Bonds  of  joint  executors  and  administrators. — When  two 
or  more  persons  are  appointed  administrators  or  executors,  the  court 


152  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

may  take  separate  bond  from  each,  with  sureties,  or  a  joint  bond,  with 
sureties  from  all. 

Sec.  681.  Executor  neglecting  to  give  bond. — No  person  named 
executor  in  a  will,  who  refuses  to  accept  the  trust,  or  neglects  to  give 
a  bond,  for  twentj'  days  after  the  allowance  of  such  will,  shall  inter- 
meddle or  act  as  executor,  and  in  case  of  such  neglect  to  accept,  or 
refusal  to  give  bond,  the  court  may  grant  letters  testamentary  to 
the  other  executors  who  are  capable  and  willing  to  accept  the  trust; 
and  if  there  is  no  other  executor  who  will  give  a  bond,  administra- 
tion shall  be  granted  with  the  will  annexed  to  the  person  who  would 
have  been  entitled  to  the  same  if  the  testator  had  died  intestate. 

Sec  682.  When  creditor  is  <t  minor. — When  a  person  named  ex- 
ecutor in  a  will  is  under  age  at  the  time  of  proving  the  will,  admin- 
istration shall  be  granted,  with  the  will  annexed,  during  the  minority 
of  the  executor,  to  the  person  who  would  have  been  entitled  to  the 
same  if  the  testator  had  died  intestate,  unless  there  is  another  execu- 
tor who  accepts  the  trust  and  gives  the  bond  and  in  that  case,  the 
executor  who  gives  a  bond  shall  have  letters  testamentary,  and  shall 
administer  the  estate  until  the  minor  is  of  age,  when  he  may  be 
admitted,  on  giving  a  bond,  as  joint  executor. 

Sec.  683.  Executor  of  executor  not  to  administer  estate — The  ex- 
ecutor of  an  executor  shall  not,  as  such,  administer  the  estate  of  the 
first  testator. 

DEATH,   REMOVAL,   ETC.,   OF  EXECUTOR  OR   ADMINISTRATOR. 

Sec.  684.  ///  case  of  vacant //.  mho  to  administer. — When  an  execu- 
tor or  administrator,  dies,  resigns,  or  is  removed,  or  his  authority  is 
extinguished,  the  remaining  executor  or  administrator  may  admin- 
ister the  trust,  and  if  there  is  no  other  executor  or  administrator, 
administration  may  be  granted  to  a  suitable  person. 

Sec  685.  Power  of  new  administrator. — An  administrator,  ap- 
pointed in  the  place  of  a  former  executor  or  administrator,  shall  have 
the  same  power  in  settling  the  estate  not  administered  as  the  former 
administrator  or  executor  had;  and  may  prosescute  or  defend  actions 
commenced  by  or  against  the  former  executor  or  administrator,  and 
may  have  execution  on  judgments  recovered  in  the  name  of  such 
former  executor  or  administrator. 

Sec.  686.  Appointment  of  administrator  to  act  with  survivor. — 
When  an  executor  or  administrator  dies,  resigns,  is  removed,  or  his 
authority  is  extinguished  leaving  a  remaining  executor  or  admin- 
istrator, administration  may  be  granted  to  some  suitable  person, 
with  such  remaining  executor  or  administrator  upon  the  application 
of  any  person  interested  in  the  estate  of  the  deceased,  as  surviving 
husband,  widow,  heir-,  creditor,  devisee,  legatee,  or  other  legal  repre- 
sentative. 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  153 

Sec.  687.  His  powers. — An  administrator  appointed  under  the  pre- 
ceding section  shall  have  the  same  power  as  the  remaining-  executor 
or  administrator  lias,  and  with  said  executor  or  administrator  may 
prosecute  or  defend  actions  commenced  by  or  against  the  former 
executors  or  administrators,  and  have  execution  on  judgments  re- 
covered in  the  names  of  the  former  executors  or  administrators. 

Sec.  088.  The  court  may  re  more  or  accept  resignations  of  execu- 
tor or  administrator. — If  an  executor  or  administrator  neglects,  after 
notice  by  the  court,  to  render  his  account  and  settle  the  estate  ac- 
cording to  law,  or  to  perform  an  order  or  decree  of  such  court,  or 
absconds,  or  becomes  insane,  or  otherwise  incapable  or  unsuitable 
to  discharge  the  trust,  the  court  may.  in  its  discretion,  remove  him, 
and  may  allow  an  executor  or  administrator  to  resign. 

Sec.  689.  Married  women. — A  married  woman  may  be  administra- 
trix or  executrix,  and  the  marriage  of  a  single  woman  shall  not  affect 
her  authority  so  to  act  under  a  previous  appointment. 

Sec.  600.  One  of  co-executors  disqualified,  other*  may  act. — When 
executors  appointed  in  a  will  cannot,  according  to  the  provisions  of 
this  chapter,  act  as  such,  those  who  can  act  may  perform  the  duties 
and  discharge  the  trust  required  by  the  will. 

Sec.  691.  Estate  of  person  unheard  from  for  fifteen  year*  may  he 
administered. — A  person  absent  and  unheard  from  for  fifteen  years 
.shall  be  deemed  to  be  dead  from  the  time  of  his  disappearance,  or 
when  last  heard  from,  and  the  court  having  jurisdiction  of  his  estate 
may  grant  administration  thereof,  and  proceed  with  said  estate  as 
in  the  settlement  of  intestate  estates  and  decree  distribution  thereof 
to  the  known  heirs  of  such  absent  person;  but  if  such  absent  person 
proves  to  be  alive,  he  shall  be  entitled  to  his  estate  notwithstanding 
the  settlement  and  distributions  aforesaid,  and  may  recover,  in  any 
proper  action,  any  portion  thereof,  which  any  (me  has  received  in  such 
settlement  and  distribution. 

Sec.  692.  Administration  re  coked  if  will  discovered. — If,  after 
granting  letters  of  administration  by  a  court  on  the  estate  of  a 
person  as  if  he  had  died  intestate,  a  will  of  such  deceased  person  is 
proved  and  allowed  by  the  court,  the  letters  of  administration  shall 
be  revoked  and  the  powers  of  the  administrator  cease,  and  he  shall 
thereunder  surrender  the  letters  of  administration  to  the  court,  and 
render  his  account  within  such  time  as  the  court  directs. 

Sec.  693.  Power  of  executor  in  such  case. — The  executor  of  the 
will,  in  such  case,  may  demand,  sue  for,  and  collect  the  goods,  chat- 
tels, rights,  and  credits,  of  the  estate  of  the  deceased  remaining  unad- 
tninistered,  and  may  prosecute  to  final  judgment  suits  commenced  by 
the  administrator  before  the  revocation  of  his  letters  of  administra- 
tion. 


154  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  694.  Acts  he  fore  revocation  to  be  valid. — The  acts  of  an  ex- 
ecutor or  administrator,  before  the  revocation  of  his  letters  testa- 
mentary or  of  administration,  shall  be  valid,  the  same  as  if  there 
had  been  no  revocation. 

Sec  695.  Appointment  of  special  administrator. — When  there  is 
delay  in  granting  letters  testamentary  or  letters  of  administration 
occasioned  by  an  appeal  from  the  allowance  or  disallowance  of  a 
will,  or  from  any  other  cause,  the  court  may  appoint  an  adminis- 
trator to  act  in  collecting  and  taking  charge  of  the  estate  of  the 
deceased  until  the  questions  causing  the  delay  are  decided  and 
executors  or  administrators  are  thereupon  appointed;  no  appeal 
shall  be  allowed  from  the  appointment  of  such  special  administrator. 

Sec  696.  Powers  of  special  administrator. — Such  special  adminis- 
trator shall  collect  the  goods,  chattels,  and  credits  of  the  deceased  and 
preserve  the  same  for  the  executor  or  administrator  afterwards  ap- 
pointed, and  for  that  purpose  may  commence  and  maintain  suits  as 
an  administrator,  and  may  sell  such  perishable  and  other  personal 
property  as  the  court  orders  sold.  A  special  administrator  shall  not 
be  liable  to  an  action  by  a  creditor,  or  pay  any  debts  of  the  deceased. 

Sec  697.  To  give  bond. — A  special  administrator  shall,  before 
entering  upon  the  duties  of  his  trust  give  a  bond  as  the  court  directs, 
with  a  condition  that  he  will  make  and  return  a  true  inventory  of 
the  goods,  chattels,  rights,  credits,  and  effects  of  the  deceased  which 
come  to  his  possession  or  knowledge,  and  that  he  will  truly  account 
for  such  as  are  received  by  him,  when  required  by  the  court,  and  will 
deliver  the  same  to  the  person  afterwards  appointed  executor  or 
administrator  or  such  person  authorized  to  receive  the  same. 

Sec  698.  When  powers  cease. — Upon  granting  letters  testamentary 
or  of  administration  upon  the  estate  of  the  deceased,  the  powers  of 
such  special  administrator  shall  cease;  and  he  shall  forthwith  deliver 
to  the  executor  or  administrator  the  goods,  chattels,  money,  and 
effects  of  the  estate  of  the  deceased  in  his  hands.  The  executor  or 
administrator  may  prosecute  to  final  judgment  suits  commenced  by 
such  special  administrator. 

Chapter  XXXV. 

GENERAL  DUTIES   OF   EXECUTORS    AND   ADMINISTRATORS. 

Sec  699.  Executor  or  administrator  may  have  access  to  partner- 
ship books. — The  executor  or  administrator  of  a  deceased  partner 
shall  at  all  times  have  access  to,  and  may  make  examination  and  take 
copies  of  the  books  and  papers  relating  to  the  partnership  business; 
and  shall  at  all  times  have  the  right  to  examine  and  make  invoices 
of  the  property  belonging  to  such   partnership,  and  the  surviving 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  155 

partner  or  partners,  on  request,  shall  exhibit  to  him  all  such  books, 
papers,  and  property  in  their  hands  or  control. 

Sec.  700.  Court  may  enforce  compliance. — The  court  having  charge 
of  the  settlement  of  such  deceased  partner,  upon  application  therefor 
in  writing,  by  such  executor  or  administrator,  may  cite  such  surviv- 
ing partner  or  partners  before  it,  and  by  a  proper  order  or  decree 
compel  the  granting  of  the  rights  given  in  the  preceding  section,  and 
may  enforce  such  order  or  decree  by  commitment  to  jail. 

Sec  701.  To  keep  buildings  in  repair. — An  executor  or  adminis- 
trator shall  maintain  in  tenantable  repair  the  houses,  buildings,  and 
fences  belonging  to  the  estate,  and  deliver  the  same  in  such  repair 
when  directed  by  the  court,  to  the  heirs  or  devisees. 

Sec.  702.  Executor  to  administer  estate  not  willed. — An  executor 
shall  administer  the  estate  of  the  testator  not  disposed  of  by  will. 

INVENTORY,   APPRAISAL,   AND  ACCOUNT. 

Sec.  703.  Inventory  to  be  returned. — Every  executor  or  adminis- 
trator, unless  he  is  a  residuary  legatee  and  has  given  the  bond  pre- 
scribed for  the  residuary  legatee,  shall,  within  three  months  after  his 
appointment,  return  to  the  court  a  true  inventory  of  the  real  estate 
and  all  the  goods,  chattels,  rights,  and  credits  of  the  deceased  which 
come  into  his  possession  or  knowledge. 

Sec.  704.  Committee  to  be  appointed. — The  court  at  the  time  of 
granting  letters  testamentary  or  of  administration,  or  at  such  other 
times  as  it  deems  proper,  shall,  by  warrant,  appoint  a  committee  of 
two  or  more  disinterested  persons  to  appraise  the  estate  of  the  de- 
ceased, and  the  executor  or  administrator  shall  cause  the  estate  and 
effects  in  the  inventory  to  be  appraised  by  such  committee. 

Sec.  705.  Committee  to  be  sworn. — Such  committee  shall  be  sworn 
to  make  a  true  appraisal,  and  shall  appraise  its  value  in  money,  and 
shall  return  their  warrant  with  such  appraisal  to  the  court  within 
the  time  specified  in  the  warrant,  and  shall  deliver  a  copy  of  the 
appraisal  to  the  executor  or  administrator. 

Sec.  706.  Apparel,  and  so  forth,  not  to  be  inventoried. — The  wear- 
ing apparel  of  the  surviving  husband  or  wife,  and  of  the  minor 
children,  and  such  provisions  and  other  articles  as  will  necessarity 
be  consumed  in  the  subsistence  of  the  family  of  the  deceased,  under 
the  direction  of  the  court,  shall  not  be  considered  as  assets,  nor 
administered  as  such,  and  shall  not  be  included  in  the  inventory. 

Sec.  707.  Account  to  be  rendered  and  examination  to  be  under 
oath.— Every  executor  or  administrator  shall  render  an  account  of  his 
administration  within  one  year  from  the  time  of  receiving  letters 
testamentary  or  of  administration  unless  the  court  extends  the  time 
on  account  of  an  extension  of  the  time  for  selling  the  estate  and 


156  CODE    OF    CIVIL    PROCEDURE    OP    THE    CANAL    ZONE. 

paying  the  debts;  and  he  shall  render  further  accounts  of  his  ad- 
ministration as  may  be  required  by  the  court  until  the  estate  is 
wholly  settled;  and  he  may  be  examined  upon  oath  upon  every 
matter  relating  to  account. 

Sec.  708.  For  what  to  account. — The  executor  or  administrator 
shall  be  chargeable  in  his  account  with  the  goods,  chattels,  rights, 
and  credits  of  the  deceased  which  come  to  his  possession;  also  with 
the  proceeds  of  the  real  estate  sold  for  the  payment  of  the  debts 
and  legacies,  and  with  the  interest,  profit,  and  income  which  come  to 
his  hands  from  the  estate  of  the  deceased;  and  for  the  personal 
estate  of  the  deceased  at  its  appraisal  except  as  hereafter  provided. 

Sec.  TO'.).  Not  to  profit  by  increase  or  to  lose  by  decrease  in  value. — 
The  executor  or  administrator  shall  not  profit  by  the  increase  nor 
suffer  loss  by  the  decrease  or  destruction,  without  his  fault  of  an}' 
part  of  the  personal  estate;  and  he  shall  account  for  the  excess  when 
he  sells  any  personal  estate  for  more  than  the  appraisal;  and  if  he 
sells  for  less  than  the  appraisal  he  shall  not  be  responsible  for  the 
loss,  if  it  appears  to  be  beneficial  to  the  estate  to  sell  it.  When  he 
sells  personal  estate  under  the  special  order  of  the  court,  he  shall 
account  for  the  same  at  the  price  for  which  it  was  sold. 

Sec.  710.  Accountable  for  proceeds  of  real  estate  sold. — The  pro- 
ceeds of  real  estate  sold  for  the  payment  of  the  debts  and  charges  of 
administration,  shall  be  assets  in  the  hands  of  the  administrator,  as 
if  the  same  had  been  part  of  the  goods  and  chattels  of  the  deceased. 
The  executor  or  administrator  and  sureties  on  his  bond  shall  be  ac- 
countable therefor. 

Sec.  711.  When  not  accountable  for  debts  due. — No  executor  or 
administrator  shall  be  accountable  for  the  debts  due  the  deceased  if 
it  appears  that  they  remain  uncollected  without  his  fault. 

Sec.  712.  Accountable  for  income  from  realty. — The  executor  or 
administrator  shall  account  for  the  income  of  real  estate  while  it  re- 
mains in  his  possession;  and  if  he  uses  or  occupies  any  part  of  it 
himself,  he  shall  account  for  it  as  may  be  agreed  upon  between  him 
and  the  parties  interested,  or  adjusted  by  the  court  with  their  assent; 
and  if  the  parties  do  not  agree  upon  the  sum  to  be  allowed,  the  same 
may  be  ascertained  by  the  court,  whose  determination  in  this  respect 
shall  be  final. 

Sec.  713.  Accountable  if  he  improperly  neglects  to  raise  money. — 
When  an  administrator  neglects,  or  unreasonably  delays,  to  raise 
money,  by  collecting  the  debts  or  selling  the  real  or  personal  estate 
of  the  deceased,  or  neglects  to  pay  over  the  money  he  has  in  his 
hands,  and  the  value  of  the  estate  is  thereby  lessened  or  necessary 
costs  or  interest  accrues,  or  the  persons  interested  suffer  loss,  the 
same  shall   be   deemed   waste,   and   the   damage   sustained   may   be 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  157 

charged  and  allowed  against  him  in  his  account,  and  he  shall  be 
liable  therefor  on  his  bond. 

Sec.  714.  To  be  allowed  money  paid  as  costs,  when. — The  amount 
paid  by  an  executor  or  administrator  for  costs  awarded  against  him 
shall  be  allowed  in  his  administration  account,  unless  it  appears  that 
the  suit  or  proceedings  in  which  the  costs  are  taxed  was  prosecuted 
or  resisted  without  just  cause,  and  not  in  good  faith. 

Sec  715.  How  allowed  for  services. — The  executor  or  adminis- 
trator shall  be  allowed  the  necessary  expenses  in  the  care,  manage- 
ment, and  settlement  of  the  estate,  and  for  his  services,  two  dollars 
per  day  for  the  time  actually  and  necessarily  employed  and  a  com- 
mission of  five  per  cent  upon  all  sums  disbursed  in  the  payments 
of  debts,  expenses,  and  distributive  shares,  if  the  amount  of  such 
disbursements  does  not  exceed  one  thousand  dollars.  If  the  amount 
exceeds  one  thousand  dollars  and  does  not  exceed  five  thousand  dol- 
lars, then  five  per  cent  upon  the  first  one  thousand  dollars  and  two 
and  one  half  per  cent  upon  the  excess,  if  the  whole  amount  does  not 
exceed  ten  thousand  dollars.  If  the  total  disbursements  exceed  five 
thousand  dollars,  then  the  percentage  as  above  provided,  and  one 
per  cent  on  the  excess  above  ten  thousand  dollars.  Where  there  are 
more  than  one  executor  the  fees  shall  be  divided  between  them,  except 
that  on  estates  exceeding  ten  thousand  dollars  each  executor  shall 
receive  one  per  cent  upon  the  excess  over  ten  thousand  dollars.  In 
any  exceptional  case,  where  the  estate  is  large,  and  the  settlement  has 
been  attended  with  extraordinary  difficulty,  and  has  required  a  high 
degree  of  capacity  on  the  part  of  the  executor  or  administrator,  a 
greater  sum  may  be  allowed.  But  if  objection  to  the  fees  allowed 
be  taken  the  allowance  may  be  reexamined  by  the  Supreme  Court  on 
appeal. 

When  the  administrator  or  executor  is  a  lawyer,  he  shall  not  be 
allowed  to  charge  against  the  estate  any  professional  fees,  as  such, 
for  services  rendered  by  himself.  When  the  deceased  by  will  makes 
some  other  provision  for  compensation  to  his  executor,  that  provision 
shall  be  a  full  satisfaction  for  his  services,  unless  by  a  written  in- 
strument filed  in  the  court  he  renounces  all  claims  to  the  compensa- 
tion provided  by  the  will. 

Sec  716.  Account,  how  verified. — The  court  shall  examine  every 
executor  and  administrator  upon  oath  as  to  the  correctness  of  his 
account,  before  the  same  is  allowed,  except  when  no  objection  is 
made  to  the  allowance  of  the  account,  and  its  correctness  is  satis- 
factorily established  by  competent  testimony.  The  heirs,  legatees, 
and  distributees,  and  creditors  of  an  estate,  shall  have  the  same  privi- 
lege of  being  examined  on  oath  in  any  matter  relating  to  an  adminis- 
tration account  that  the  executor  or  administrator  has. 
803a— 07— m 11 


158  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

Sec.  717.  Account  to  he  settled  on  notice. — Before  the  account  of 
an  executor  or  administrator  is  allowed,  notice  shall  be  given  to  per- 
sons interested  of  the  time  and  place  of  examining  and  allowing  the 
same ;  and  such  notice  may  be  given  personally  to  such  persons  inter- 
ested, or  by  advertisement  in  a  newspaper  or  newspapers,  or  both,  as 
the  court  directs. 

Sec.  718.  Sureties  on  bond  may  be  party  to  accounting. — Upon  the 
settlement  of  the  account  of  an  executor  or  administrator,  trustee,  or 
guardian,  a  person  liable  as  surety  in  respect  to  such  account  may, 
upon  application,  be  admitted  as  a  party  to  such  accounting,  and  may 
have  the  right  to  appeal  as  hereinafter  provided. 

Sec  719.  Allowance  to  widow  and  family,  and  descent  of  estate. — 
The  widow  and  minor  children  of  a  deceased  person,  during  the 
settlement  of  estate,  shall  receive  therefrom,  under  the  direction  of 
the  court,  such  allowances  as  are  provided  by  the  law  in  force  in  the 
Canal  Zone,  on  and  immediately  prior  to  the  twenty-third  day  of 
February,  nineteen  hundred  and  four,  and  the  descent  of  all  prop- 
erty and  estates  to  heirs  shall  be  regulated  by  that  law  as  to  all  prop- 
erty belonging  to  intestate  estates,  and  as  to  all  property  belonging 
to  testate  estates,  but  not  disposed  of  by  the  will  of  the  testator.  A 
husband  or  wife  of  the  deceased  person  shall  receive  such  portion  of 
his  or  her  estate  not  disposed  of  by  will  as  the  said  law  in  force  on  the 
twenty-third  day  of  February,  nineteen  hundred  and  four,  gives  to 
him  or  to  her. 

Sec.  720.  Community  property. — One  half  of  the  community  prop- 
erty as  determined  by  the  law  in  force  in  the  Canal  Zone  before  the 
twenty-third  day  of  February,  nineteen  hundred  and  four,  belonging 
to  a  husband  and  wife,  shall  be  deemed  to  belong  to  the  deceased  hus- 
band or  wife,  and  shall  be  inventoried  and  accounted  for,  and  distrib- 
uted as  a  part  of  the  estate,  in  the  same  manner  as  all  other  property 
belonging  to  the  estate. 

Chapter  XXXVI. 

CLAIMS  AGAINST  ESTATES,  HOW  ALLOWED. 

Sec.  721.  Executor  or  administrator  to  notify  times  and  places  of 
meeting. — The  executor  or  administrator  shall  appoint  convenient 
times  and  places  for  the  examination  and  allowance  of  claims,  and, 
within  sixty  days  from  the  time  of  his  qualification,  shall  post  a 
notice  in  four  public  places  in  the  circuit  stating  the  times  and  places, 
and  the  time  limited  for  creditors  to  present  their  claims,  and  shall 
publish  the  same  three  weeks  successively  in  a  newspaper  of  general 
circulation  in  the  circuit,  to  be  designated  by  the  court,  and  give 
such  other  notice  as  the  court  directs. 

Sec.  722.  Court  to  limit  time  for  presenting  claims. — The  court 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  159 

shall  allow  such  time  as  the  circumstances  of  the  case  require  for  the 
creditors  to  present  their  claims  to  the  executor  or  administrator  for 
examination  and  allowance;  but  not,  in  the  first  instance,  more  than 
twelve  months,  or  less  than  six  months.  The  court  may  extend  the 
time  as  circumstances  require,  but  not  so  that  the  whole  time  shall 
exceed  eighteen  months. 

Sec.  723.  When  time  may  he  extended. — On  application  of  a 
creditor  who  has  failed  to  present  his  claim,  if  made  within  six 
months  after  the  time  previously  limited,  or,  if  the  executor  or 
administrator  fails  to  give  the  notice  required  by  this  chapter,  and 
such  application  is  made  before  the  final  settlement  of  the  estate,  the 
court  may,  for  cause  shown,  and  on  such  terms  as  are  equitable,  allow 
further  time,  not  exceeding  one  month,  for  the  presentation  and 
examination  of  such  claim. 

Sec  724.  Executor  to  report. — At  the  expiration  of  the  time  limited 
the  executor  or  administrator  shall  make  a  report  to  the  court,  with 
lists  of  the  claims  presented,  or  exhibited  in  offset,  stating  how  much 
was  allowed  and  Iioav  much  was  disallowed,  with  the  final  balance, 
whether  in  favor  of  the  creditor  or  the  estate;  and  the  report  shall 
state  the  manner  in  which  notice  was  given  to  the  claimants. 

Sec  725.  Executor  or  administrator  to  notify  certain  claimants  at 
the  time  of  filing  report. — The  executor  shall  give  notice  to  claimants 
whose  claims  are  disallowed  to  the  amount  of  twenty  dollars  or  more, 
of  the  time  of  filing  his  report  in  the  clerk's  office,  which  notice 
shall  be  given  personally  or  by  letter,  on  the  day  of  filing  such  report. 

Sec  726.  Claims  not  presented,  barred. — A  person  having  a  claim 
against  a  deceased  person,  proper  to  be  allowed,  who  does  not,  after 
publication  of  the  required  notice,  exhibit  his  claim  to  the  executor 
as  provided  in  this  chapter,  shall  be  barred  from  recovering  such 
demand  or  from  pleading  the  same  in  offset  in  any  action,  except  as 
hereinafter  provided. 

Sec  727.  Estate's  claims  to  be  offset. — When  a  creditor  against 
whom  the  deceased  has  claims,  presents  a  claim  to  the  executor  or 
administrator,  the  executor  or  administrator  shall  offset  the  claims  of 
the  deceased  against  the  claims  of  the  creditor,  and  shall  ascertain 
and  allow  the  balance  for  or  against  the  estate,  as  the  case  may  be. 

Claims  of  the  estate  against  a  creditor  who  presents  a  claim  for 
allowance  against  the  estate  of  which  the  executor  or  administrator 
lias  or  ought  to  have  knowledge  shall  be  barred,  unless  so  offset. 

Sec.  728.  Claim  of  executor  o>-  administrator  against  an  estate. — 
If  the  executor  or  administrator  has  a  claim  against  the  estate  he 
represents,  he  shall  give  notice  thereof,  in  writing,  to  the  court,  and 
the  court  shall  adjust  the  same  directly. 

Sec.  72*.).  Exceptions  by  creditors  and  distributees. — Any  creditor 
or  distributee  dissatisfied  with  the  act  ion  of  the  executor  or  adminis- 


160  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

trator  disallowing  or  allowing  a  claim  may  file  exceptions  thereto, 
and,  upon  notice  to  the  executor  or  administrator  or  creditor,  bring 
the  same  on  to  be  heard  at  the  next  term  of  the  court.  The  court 
thereupon  shall  hear  the  proof  for  and  against  the  claim,  and  may 
allow  or  disallow  the  claim  directly,  or  may  approve  the  executor's 
or  administrator's  action  thereon,  or  may  direct  issues  to  be  framed 
and  a  formal  trial  to  be  hold  upon  the  claim  as  in  the  case  of  a  regular 
action.  From  the  final  judgment  of  the  court,  with  respect  to  the 
claim,  an  appeal  may  be  allowed  to  the  Supreme  Court,  as  in  other 
cases  provided.  A  distributee  may  likewise  except  to  and  appeal 
from  the  action  of  the  executor  or  administrator  in  failing  to  offset 
a  claim  of  the  estate  against  a  creditor. 

Sec.  730.  Estate  of  joint  debtor  liable  for  the  whole  claim. — When 
two  or  more  persons  are  indebted  on  a  joint  contract,  or  upon  a 
judgment  founded  on  a  joint  contract,  and  either  of  them  dies,  his 
estate  shall  be  liable  therefor,  and  it  shall  be  allowed  by  the  com- 
mittee as  if  the  contract  had  been  with  him  alone  or  the  judgment 
against  him  alone.  But  the  estate  shall  have  the  right  to  recover 
contribution  from  the  other  joint  debtor. 

Sec.  731.  Executor  or  administrator  not  to  be  sued. — Xo  action  or 
suit  shall  be  commenced  or  prosecuted  against  the  executor  or  admin- 
istrator upon  a  claim  against  the  estate  to  recover  a  debt  due  from 
the  estate  until  the  same  has  been  presented  to  the  executor  and 
rejected;  but  actions  to  recover  the  seizin  and  possession  of  real 
estate  and  personal  chattels  claimed  by  the  estate  may  be  commenced 
against  him. 

Sec.  732.  An  executor  or  administrator  may  sue. — Nothing  in  this 
chapter  shall  prevent  an  executor  or  administrator  from  commencing 
and  prosecuting  an  action  commenced  by  the  deceased  in  his  life- 
time, for  the  recovery  of  a  debt  or  claim,  to  final  judgment,  or  from 
having  execution  on  a  judgment,  and  in  such  case  the  defendant  may 
plead  in  offset  the  claims  he  has  against  the  deceased,  instead  of  pre- 
senting them  to  the  executor,  and  mutual  claims  may  be  offset  in 
such  actions;  and  if  final  judgment  is  rendered  in  favor  of  the  de- 
fendant, the  judgment  so  rendered  shall  be  considered  the  true  bal- 
ance against  the  estate,  as  though  the  claim  had  been  duly  presented. 

Such  actions  shall  be  prosecuted  in  the  same  circuit  and  same  court 
as  they  would  have  been  if  brought  by  the  deceased  person  while 
alive. 

Chapter  XXXVII. 

SUITS  BY  AND  AGAINST  EXECUTOR  AND  ADMINISTRATOR. 

Sec.  733.  Heir  may  not  sue  until  share  assigned. — When  an  execu- 
tor or  administrator  is  appointed  and  assumes  the  trust,  no  action  to 


CODE    OF    CIVIL   PROCEDURE    OP    THE    CANAL   ZONE.  161 

recover  the  title  or  possession  of  land,  or  for  damages  done  to  such 
lands,  shall  be  maintained  against  him  by  an  heir  or  devisee,  until 
there  is  a  decree  of  the  court  assigning  such  lands  to  such  heir  or 
devisee,  or  until  the  time  allowed  for  paying  debts  has  expired,  unless 
the  executor  or  administrator  surrenders  the  possession  to  the  heir  or 
devisee. 

Sec.  734.  Representative  may  be  cited  to  appear. — If  the  executor 
or  administrator  does  not  voluntarily  appear  and  prosecute  or  defend 
any  action  pending  against  the  deceased,  and  which  would  survive 
according  to  the  provisions  of  this  chapter,  the  surviving  party  may 
take  out  a  citation  from  the  court  before  which  the  case  is  pending, 
requiring  the  executor  or  administrator  to  appear  and  prosecute  or 
defend  the  action,  which  citation  shall  be  served  at  least  twelve  days 
before  the  time  at  which  he  is  required  to  appear.  If  the  executor 
or  administrator,  after  being  so  cited,  neglects  to  become  a  party  to 
the  suit,  he  shall  be  nonsuited,  or  defaulted,  as  the  case  may  be,  and 
judgment  rendered  against  him  as  administrator  or  executor;  but  he 
shall  not  be  personally  liable  for  costs ;  but  the  costs  shall  be  paid  the 
same  as  the  debt  or  damages,  out  of  the  estate  of  the  deceased.  If 
there  is  no  executor  or  administrator  appointed,  the  death  of  the 
party  may  be  suggested  on  the  record,  and  the  suit  continued  until 
an  executor  or  administrator  is  appointed. 

Sec.  735.  Representative  may  compound  with  debtor. — An  execu- 
tor or  administrator  may  compound  with  the  debtor  of  the  deceased 
for  a  debt  due,  with  the  approval  of  the  court,  and  may  give  a  dis- 
charge of  such  debt,  on  receiving  a  just  dividend  of  the  estate  of  the 
debtor. 

Sec.  736.  Mortgage  debt  due  to  estate. — Debt  secured  by  mortgage, 
together  with  the  security,  belonging  to  the  estate  of  a  deceased  per- 
son, as  mortgagee  or  assignee  of  the  right  of  a  mortgagee,  when  such 
mortgage  was  not  foreclosed  in  the  lifetime  of  deceased,  shall  be 
deemed  to  be  personal  assets  in  the  hands  of  the  executor  or  adminis- 
trator and  administered  and  accounted  for  as  such ;  and  the  executor 
or  administrator  may  foreclose  the  mortgage,  and  the  proceeds  of 
foreclosure  which  may  be  ultimately  realized  shall  be  deemed  to  be 
personal  assets  to  be  administered  and  accounted  for  as  such. 

Sec.  737.  Mortgage  debt  due  from  estate. — A  creditor  holding  a 
claim  against  the  deceased,  secured  by  mortgage  or  other  collateral 
security,  may  abandon  the  security  and  prosecute  his  claim  before  the 
executor  or  administrator,  and  share  in  the  general  distribution  of 
the  estate;  or  he  may  foreclose  his  mortgage  or  realize  upon  his 
security,  by  ordinary  action  in  court,  making  the  executor  or  admin- 
istrator a  party  defendant;  and  if  there  is  a  judgment  for  a  defici- 
ency,  after   the  sale   of  the  mortgaged   premises,   or  the  property 


162  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

pledged,  in  the  foreclosure  or  other  proceeding  to  realize  upon  the 
security,  he  may  prove  his  deficiency  judgment  before  the  executor 
or  administrator,  against  the  estate  of  the  deceased;  or  he  may  rely 
upon  his  mortgage  or  other  security  alone,  and  foreclose  the  same 
at  any  time,  within  the  period  of  the  statute  of  limitations,  and  in 
that  event  he  shall  not  be  admitted  as  a  creditor,  and  shall  receive 
no  share  in  the  distribution  of  the  other  assets  of  the  estate;  but 
nothing  herein  contained  shall  prohibit  the  executor  or  administra- 
tor from  redeeming  the  property  mortgaged  or  pledged,  by  paying 
the  debt  for  which  it  is  held  as  security,  under  the  direction  of  the 
court,  if  the  court  shall  adjudge  it  to  be  for  the  best  interests  of  the 
estate  that  such  redemption  shall  be  made. 

Chapter  XXXVIII. 

PROPERTY    EMBEZZLED  OR  SECRETED,   OR   FRAUDULENTLY   CONVEYED. 

Sec.  738.  Proceedings  for  the  recovery  of  property  embezzled  or 
fraudidently  conveyed. — If  an  executor  or  administrator,  heir,  lega- 
tee, creditor,  or  other  person  interested  in  the  estate  of  a  deceased  per- 
son, complains  to  the  court  having  jurisdiction  of  the  estate,  that  a 
person  is  suspected  of  having  concealed,  embezzled,  or  conveyed  away 
any  of  the  money,  goods,  or  chattels  of  the  deceased,  or  that  such 
person  has  in  his  possession,  or  has  knowledge  of  any  deed,  convey- 
ance, bond,  contract,  or  other  writing  which  contains  evidence  of,  or 
tends  to  disclose  the  right,  title,  interest,  or  claim  of  the  deceased  to 
real  or  personal  estate,  or  the  last  will  and  testament  of  the  deceased, 
the  court  may  cite  such  suspected  person  to  appear  before  it,  and 
may  examine  him  on  oath  on  the  matter  of  such  complaint;  if  the 
person  so  cited  refuses  to  appear  and  answer  such  examination,  or  to 
answer  such  interrogatories  as  are  put  to  him,  the  court  may,  by 
warrant,  commit  him  to  the  jail  or  prison  of  the  circuit,  there  to 
remain  in  close  custody  until  he  submits  to  the  order  of  the  court; 
and  such  interrogatories  and  answers  shall  be  in  writing  and  signed 
by  the  party,  and  filed  in  the  clerk's  office. 

Sec.  739.  Persons  intrusted  with  estates  may  be  compelled  to  ren- 
der account. — The  Court,  on  complaint  of  an  executor  or  adminis- 
trator, may  cite  a  person  who  is  intrusted  by  an  executor  or  adminis- 
trator with  any  part  of  the  estate  of  the  deceased  person,  to  appear 
before  it,  and  may  require  such  person  to  render  a  full  account,  on 
oath,  of  the  money,  goods,  chattels,  bonds,  accounts,  or  other  papers 
belonging  to  such  estate,  as  came  into  his  possession,  in  trust  for  such 
executor  or  administrator,  and  of  his  proceedings  thereon:  and  if 
the  person  so  cited  refuses  to  appear  to  render  such  account,  the 
court  may  proceed  against  him  as  provided  in  the  preceding  section. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  163 

Sec.  740.  Embezzlement  before  letters  issued. — If  a  person,  before 
the  granting  of  letters  testamentary  or  of  administration  on  the 
estate  of  a  deceased  person,  embezzles,  or  alienates,  any  of  the  money, 
goods,  chattels,  or  effects  of  such  deceased  person,  such  person  shall 
be  liable  to  an  action  in  favor  of  the  executor  or  administrator  of  such 
estate  for  double  of  the  value  of  the  property  sold,  embezzled,  or 
alienated,  to  be  recovered  for  the  benefit  of  such  estate. 

Sec  741.  Estate  fraudulently  conveyed  by  deceased  may  be  re- 
covered.— When  there  is  a  deficiency  of  assets  in  the  hands  of  an 
executor  or  administrator  for  the  payment  of  debts  and  expenses  of 
administration,  and  the  deceased  person  in  his  lifetime  had  conveyed 
real  estate,  or  a  right  or  interest  therein,  with  an  intent  to  defraud 
his  creditors  or  to  avoid  a  right,  debt,  or  duty  of  a  person;  or  had 
so  conveyed  such  estate  that  by  law  the  conveyance  would  be  void 
as  against  his  creditors  and  the  estate  attempted  to  be  conveyed  would 
be  liable  to  attachment  or  execution  by  a  creditor  of  the  deceased 
in  his  lifetime,  the  executor  or  administrator  may  commence  and 
prosecute  to  final  judgment  an  action  for  the  recovery  of  such  real 
estate  or  interest  therein,  for  the  benefit  of  the  creditors ;  and  he  may 
also,  for  the  benefit  of  the  creditors,  sue  and  recover,  for  such  goods, 
chattels,  rights,  or  credits  fraudulently  conveyed  by  the  deceased  in 
his  lifetime,  with  the  intent  in  this  section  stated ;  but  no  executor  or 
administrator  shall  be  bound  to  institute  such  proceedings  in  such 
actions  unless  on  application  of  the  creditors  of  the  deceased,  nor 
unless  the  creditors  making  the  application  pay  such  part  of  the 
costs  and  expenses,  or  give  security  therefor  to  the  executor  or  ad- 
ministrator as  the  court  deems  equitable. 

Sec  742.  Creditor  under  certain  circumstances  may  sue. — When 
there  is  a  deficiency  of  assets  in  the  hands  of  an  executor  or  admin- 
istrator to  pay  debts  and  expenses,  and  when  the  deceased  person  made 
in  his  lifetime  such  fraudulent  conveyance  of  such  real  or  personal 
estate  or  of  a  right  or  interest  therein,  as  is  stated  in  the  preceding 
section,  any  creditor  of  the  estate  may,  by  permission  of  the  court, 
if  the  executor  or  administrator  has  not  commenced  such  action, 
commence  and  prosecute  to  final  judgment,  in  the  name  of  the  ex- 
ecutor or  administrator,  an  action  for  the  recovery  of  the  same,  and 
may  recover  for  the  benefit  of  the  creditors,  such  real  or  personal 
estate,  or  interest  therein  so  conveyed.  But  such  action  shall  not 
be  commenced  until  the  creditor  files  in  court  a  bond  with  sufficient 
surely,  to  be  approved  by  the  judge,  conditioned,  to  indemnify  the 
executor  or  administrator  against  the  costs  of  such  actions.  Such 
creditor  shall  have  a  lien  upon  the  judgment  by  him  so  recovered, 
for  the  costs  incurred  and  such  other  expenses  as  the  court  deems 
equitable. 


Itf4  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

Chapter  XXXIX. 

SALE    OF    ESTATE. 

Sec.  743.  Realty  may  be  sold  though  personalty  not  exhausted. — 
When  the  personal  estate  of  the  deceased  is  not  sufficient  to  pay  the 
debts  and  charges  of  administration  without  injuring  the  business 
of  those  interested  in  the  estate,  or  otherwise  prejudicing  their  in- 
terests, and  where  a  testator  has  not  otherwise  made  sufficient  pro- 
vision for  the  payment  of  such  debts  and  charges,  the  court,  on 
application  of  the  executor  or  administrator,  with  the  consent  and 
approbation,  in  writing,  of  the  heirs,  devisees,  and  legatees,  residing 
in  the  Canal  Zone,  may  grant  a  license  to  the  executor  or  administra- 
tor to  sell  for  that  purpose  real  estate,  in  lieu  of  personal  estate,  if 
it  clearly  appears  that  such  sale  of  real  estate  would  be  beneficial 
to  the  persons  interested  and  will  not  defeat  any  devise  of  land;  in 
which  case  the  assent  of  the  devisee  shall  be  required. 

Sec.  744.  //  part  can  not  be  .\<>i<l  without  injury,  the  whole  may 
be. — When  an  executor  or  administrator  makes  application  to  the 
court  for  license  to  sell  real  estate  for  payment  of  debts  or  charges  of 
administration,  and  it  appears  that  a  part  can  not  be  sold  without 
injurjr  to  those  interested  in  the  remainder,  the  court  may  grant 
license  to  sell  the  whole  of  such  estate,  or  such  part  as  is  necessary 
or  beneficial  to  those  concerned  therein. 

Sec.  745.  Persons  interested  may  prevent  sale. — No  such  license  to 
sell  real  estate  shall  be  granted  if  any  of  the  persons  interested  in  the 
estate  give  a  bond,  in  such  sum  and  with  such  sureties  as  the  court 
directs,  conditioned  to  pay  the  debts  and  expenses  of  administration 
within  such  time  as  the  court  directs;  and  such  bond  shall  be  for 
the  security  of,  and  may  be  prosecuted  for  the  benefit  of  the  creditors, 
as  well  as  for  the  executor  or  administrator. 

Sec.  746.  The  court  may  order  personalty  sold. — The  court,  on 
application  of  the  executor  or  administrator,  may  order  the  personal 
estate,  or  part  of  it,  to  be  sold,  if  it  appears  necessary  for  the  purpose 
of  paying  debts,  legacies,  or  expenses  of  administration,  or  for  the 
preservation  of  the  property. 

Sec.  747.  Estate  may  be  sold  when  beneficial  to  heirs. — -When  it 
appears  to  the  court  that  it  will  be  beneficial  to  the  heirs,  devisees, 
or  legatees,  or  those  interested  in  an  estate,  by  reason  of  their  resid- 
ing out  of  the  Canal  Zone  or  otherwise,  that  a  part  or  the  whole 
of  the  personal  estate,  or  a  part  or  the  whole  of  the  real  estate,  or 
both  the  real  and  personal  estate,  should  be  sold,  the  court  may, 
upon  application  of  the  administrator  or  executor,  with  the  consent 
and  approbation,  in  writing,  of  the  heirs,  devisees,  and  legatees,  who 
are  interested  in  the  estate  to  be  sold,  grant  license  to  sell  the  whole 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  165 

or  a  part  of  said  estate,  although  not  necessary  to  pay  debts,  legacies, 
or  charges  of  administration;  but  such  license  shall  not  be  granted 
if  inconsistent  with  the  provisions  of  a  will.  In  case  of  such  sale, 
the  proceeds  shall  be  decreed  and  assigned  to  the  persons  entitled 
to  the  estate,  and  in  the  same  proportions. 

Sec.  748.  May  be  sold  to  pay  debts  and  legacies  in  other  coun- 
tries.— When  the  sale  of  real  or  personal  estate  is  not  necessary  to 
pay  the  debts  against  the  deceased  person  in  the  Canal  Zone,  and  it 
appears  to  the  court  by  records  and  proceedings  of  a  probate  court 
in  another  state  or  country,  that  the  estate  of  the  deceased  in  such 
other  state  or  country  is  not  sufficient  to  pay  the  debts  and  legacies  in 
that  country,  the  Circuit  Court  in  the  Canal  Zone  may  license  the 
executor  or  administrator  to  sell  the  real  or  personal  estate  for  the 
payment  of  debts  or  legacies  in  the  other  state  or  country,  in  the 
same  manner  as  provided  for  the  payment  of  debts  or  legacies  in  the 
Zone. 

Sec  749.  Realty  acquired  on  execution,  and  so  forth,  may  be 
sold. — The  court  may  grant  license  to  an  executor  or  an  administrator 
to  sell  real  estate  acquired  by  such  administrator  or  executor  on  exe- 
cution or  foreclosure  sale,  although  not  necessary  for  the  payment  of 
debts,  legacies,  or  charges  of  administration,  when  it  appears  that 
such  sale  will  be  beneficial  to  all  persons  interested  in  such  real  estate. 

Such  license  shall  be  granted  under  the  same  regulations  as  pre- 
scribed in  this  chapter  for  the  sale  of  other  real  estate. 

Sec.  750.  Realty  may  be  sold  to  pay  legacies. — When  a  legacy  is 
given  by  a  will,  which,  for  want  of  sufficient  estate  or  otherwise,  is 
chargeable  upon  the  real  estate  of  deceased,  the  executor  may  be 
licensed  by  the  court  to  sell  such  real  estate  for  the  purpose  of  paying 
such  legacy,  as  provided  in  the  sale  of  real  estate  for  the  payment 
of  debts. 

Sec.  751.  Regulations  for  license  to  sell. — When  an  executor  or 
administrator  considers  it  necessan'  or  beneficial  to  sell  real  or  per- 
sonal estate,  in  cases  provided  by  law.  he  may  make  application  to  the 
court  having  jurisdiction  of  the  estate,  and  such  court  maj^  grant 
license,  when  it  appears  necessary  or  beneficial,  under  the  following 
regulations : 

1.  The  executor  or  administrator  shall  present  to  the  Court  his 
petition  in  writing,  setting  forth  the  amount  of  debts  due  from  the 
deceased,  with  charges  of  administration,  the  value  of  the  personal 
estate,  situation  of  the  estate  to  be  sold,  or  such  other  facts  as  show 
that  the  sale  is  necessary  or  beneficial; 

2.  In  cases  where  the  consent  of  heirs,  devisees,  and  legatees  is 
required,  the  executor  or  administrator  shall  produce  to  the  court 
their  assent  in  writing,  and  signed  by  such  heirs,  devisees,  or  legatees, 


166  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

or  by  the  guardians  of  such  as  are  minors  or  otherwise  under  guard- 
ianship ; 

3.  The  court  shall  thereupon  appoint  a  time  and  place  of  hearing 
for  deciding  upon  such  application,  and  shall  require  notice  to  be 
given  of  such  application,  and  of  the  time  and  place  of  hearing  to  the 
persons  interested ;  which  notice  shall  state  the  nature  of  the  applica- 
tion and  the  reason  for  the  same,  the  time  and  place  of  hearing,  and 
shall  be  published  two  weeks  successively  previous  thereto,  in  a 
newspaper  of  general  circulation  in  the  neighborhood  of  those  inter- 
ested, to  be  designated  by  the  court;  and  the  court  may  order  such 
further  notice  as  is  adjudged  proper.  If  personal  notice  is  given  to 
the  persons  interested,  the  public  notice  may  be  dispensed  with; 

4.  If  the  court  requires  it,  the  executor  or  administrator,  before 
license  is  granted,  shall  give  a  new  bond,  in  such  sum  and  with  such 
sureties  as  the  court  directs,  conditioned  that  such  executor  or  admin- 
istrator shall  account  for  the  proceeds  of  such  sale ; 

5.  If  the  proof  produced  satisfies  the  court  and  if  the  regulations 
in  the  first  four  sub-divisions  of  this  section  are  complied  with,  the 
court  may,  by  decree,  authorize  the  executor  or  administrator  to 
sell  such  part  of  the  estate  as  is  deemed  necessary,  either  at  public 
or  private  sale,  as  would  be  most  beneficial  to  all  parties  concerned, 
and  furnish  the  executor  or  administrator  with  a  certified  copy  of 
such  license  or  order  of  sale ;  * 

6.  If  the  order  is  to  sell  the  estate  at  auction,  the  court  shall  desig- 
nate the  mode  of  giving  notice  of  the  time  and  place  of  the  sale,  which 
shall  be  stated  in  the  copy  or  certificate  of  such  order  furnished  the 
executor  or  administrator; 

7.  The  record  of  the  order  of  sale  in  the  court,  and  the  copy  or 
the  certificate  of  such  order  furnished  the  executor  or  administrator, 
shall  state  that  such  of  the  requisites  prescribed  in  the  first  four 
sub-divisions  of  this  section,  as  are  required  in  the  case,  are  complied 
with;  and  such  certificate  or  copy  of  the  order  of  sale  shall  be  re- 
corded in  the  office  of  the  Kegistrar  of  Land  Titles  of  the  circuit  in 
which  the  lands  thus  to  be  sold  are  situated. 

Sec.  752.  Effect  of  deed. — The  deed  of  an  executor  or  adminis- 
trator of  the  real  estate  of  deceased  persons,  having  such  certificate 
or  copy  of  an  order  of  sale  from  the  probate  court  shall  be  as  valid 
to  convey  the  estate  authorized  to  be  sold  as  if  the  deed  had  been 
executed  by  the  deceased  in  his  lifetime. 

Sec.  753.  When  administrator  dies  pending  sale,  new  license  to 
issue. — In  case  of  the  death,  resignation,  or  removal  of  an  executor 
or  administrator  before  the  completion  of  the  sale  of  real  estate 
under  a  license  granted  as  above  provided,  the  court  may,  upon 
application,  at  any  time  within  two  years  after  issuing  such  prior 


CODE    OF    CIVIL    PROCEDURE    OP    THE    CANAL    ZONE.  167 

license,  issue  a  new  license  to  his  successor  without  further  notice  or 
hearing  thereon. 

Sec.  754.  When  deceased  under  contract  to  convey. — Where  a  de- 
ceased person  was  in  his  lifetime  under  contract,  binding  in  law, 
to  deed  land,  or  an  interest  therein,  the  court  having  jurisdiction 
of  an  estate  may,  on  application  for  that  purpose,  grant  license  to 
the  executor  or  administrator  to  convey  such  land,  according  to 
such  contract  or  with  such  modifications  as  are  agreed  upon  by  the 
parties,  and  approved  by  the  court;  and  if  the  contract  is  to  convey 
lands  to  the  executor  or  administrator,  the  judge  of  the  court  shall 
execute  the  deed.  The  deed  executed  by  such  executor,  adminis- 
trator, or  judge,  shall  be  as  effectual  to  convey  such  lands  as  if 
executed  by  the  deceased  person  in  his  lifetime;  but  no  court  shall 
grant  such  license  to  deed  the  lands  of  the  deceased  person  until 
notice  of  the  application  for  that  purpose  has  been  given  to  all 
parties  interested,  under  an  order  of  such  court,  and  published 
two  weeks  successively  previous  thereto,  in  such  newspaper  as  the 
court  directs;  nor  if  it  appears  to  the  court  on  a  hearing  that  the 
assets  in  the  hands  of  the  executor  or  administrator  will  thereby 
be  reduced  so  as  to  prevent  a  creditor  from  receiving  his  full  debt  or 
diminish  his  dividend. 

Sec.  755.  Lands  held  in  trust  to  he  conveyed. — Where  a  deceased 
person  in  his  lifetime  held  lands  in  trust  for  another  person,  the 
court  may,  after  notice  given  as  required  in  the  preceding  section, 
grant  license  to  the  executor  or  administrator  to  deed  such  lands  to 
the  person,  his  executor,  or  administrator,  for  whose  use  and  benefit 
the}^  are  holden;  and  the  court  may  decree  the  execution  of  such 
trust,  whether  created  b}^  deed  or  by  law. 

Chapter  XL. 

FROM    WHAT   ESTATE    DEBTS    TO    BE    PAID. 

Sec.  756.  Personalty  first  chargeable  for  debts. — The  personal 
estate  of  a  deceased  person  shall  be  first  chargeable  with  the  payment 
of  debts  and  expenses;  and  if  the  personal  estate  is  not  sufficient  for 
that  purpose,  the  whole  of  the  real  estate,  or  so  much  thereof  as  is 
necessary,  may  be  sold  for  that  purpose  by  the  executor  or  adminis- 
trator, after  obtaining  license  therefor;  and  the  executor  or  adminis- 
trator shall  have  the  right  to  the  possession  of  the  real  as  well  as 
the  personal  estate  of  the  deceased,  so  long  as  is  necessary  for  that 
purpose. 

Sec.  757.  From  what  part  of  testate  estate  debts  to  he  pnid. — If  the 
testator  makes  provision  by  his  will,  or  designates  the  estate  to  be  ap- 


168  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

propriated  for  the  payment  of  his  debts  and  the  expenses  of  adminis- 
tration or  family  expenses,  they  shall  be  paid  according  to  the  pro- 
visions of  the  will.  But  if  the  provision  made  by  the  will  or  the 
estate  appropriated  is  not  sufficient  for  that  purpose,  such  part  of  the 
estate  of  the  testator,  real  or  personal,  as  is  not  disposed  of  by  will, 
if  any,  shall  be  appropriated  for  that  purpose. 

Sec.  758.  Legacy  and  decise  liable  for  payment  of  debts. — The 
estate,  real  or  personal,  given  by  will  to  the  devisees,  or  legatees, 
shall  be  liable  for  the  payment  of  the  debts,  expenses  of  administra- 
tion, and  family  expenses,  in  proportion  to  the  amount  of  the  several 
devises  or  legacies,  except  that  specific  devises  and  legacies  may  be 
exempted  if  it  appears  to  the  court  necessary  to  carry  into  effect 
the  intention  of  the  testator,  and  if  there  is  sufficient  other  estate. 

Sec.  759.  Executor  to  retain  possession  of  an  estate,  when. — When 
the  estate  given  by  will  is  liable  for  the  payment  of  debts  and  ex- 
penses, or  is  liable  to  be  taken  to  make  up  the  share  of  a  child  born 
after  the  execution  of  a  will,  or  of  a  child  or  of  the  issue  of  a  child 
not  provided  for  in  the  will,  and  not  intentionally  excluded  there- 
from, the  executor  may  retain  possession  of  the  same  until  such 
liability  is  settled  by  order  of  the  court,  and  until  the  devises  and 
legacies  so  liable,  are  accordingly  assigned  by  order  of  the  court; 
and  a  devisee  or  legatee  may  make  his  claim  to  the  court  to  have 
such  liability  settled  and  his  devise  or  legacy  assigned  to  him. 

Sec  760.  Devisees,  legatees,  and  heirs,  in  possession,  must  con- 
tribute.— Devisees  and  legatees  who,  with  the  consent  of  the  executor 
or  otherwise,  have  possession  of  the  estate  given  to  them  by  will 
before  such  liability  is  settled  by  the  court,  shall  hold  the  same,  sub- 
ject to  the  several  liabilities  mentioned  in  the  preceding  section,  and 
shall  contribute  according  to  their  respective  liabilities  to  the  ex- 
ecutor, or  to  a  devisee  or  legatee,  from  whom  the  estate  devised  to 
him  has  been  taken  for  the  payment  of  debts  or  expenses,  or  to  make 
up  the  share  of  a  child  born  after  the  making  of  the  will,  or  of  a 
child  or  of  the  issue  of  a  child  omitted  in  the  will  and  not  inten- 
tionally excluded  thereby;  and  the  persons  who,  as  heirs,  have  re- 
ceived the  estate  not  disposed  of  by  will,  shall  be  liable  to  contribute 
like  the  devisees  or  legatees. 

Sec  761.  When  person  Mablt  to  contribvte  is  insolvent  or  dead. — If 
a  person  liable  to  contribute,  according  to  the  provisions  of  the  pre- 
ceding section,  is  insolvent  and  unable  to  pay  his  share  the  others 
shall  be  severally  liable  for  the  loss  occasioned  by  such  insolvency, 
in  proportion  to  and  to  the  extent  of  the  estate  they  have  received; 
and  if  a  person  liable  to  contribute  dies  before  paying  his  share,  the 
claim  shall  be  valid  against  his  estate  as  if  it  had  been  his  proper 
debt. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  K)9 

Sec.  762.  Court  to  fix  contributor's  shares. — The  court  having 
jurisdiction  of  the  estate,  may,  by  decree  for  that  purpose,  after 
hearing,  settle  the  amount  of  the  several  liabilities  as  provided  in 
the  preceding  section,  and  decree  how  much,  and  in  what  manner, 
each  person  shall  contribute,  and  may  issue  execution  if  circum- 
stances require. 

Chapter  XLI. 

PAYMENT   OF    DEBTS. 

Sec.  763.  Debts  to  be  paid  in  full  if  estate  sufficient. — If,  after  the 
amount  of  the  claims  against  an  estate  is  ascertained,  as  hereinbefore 
provided,  it  appears  that- the  executor  or  administrator  has  in  his 
possession  sufficient  assets  to  pay  the  debts,  he  shall  pay  the  same 
within  a  time  to  be  fixed  by  the  court. 

Sec.  764.  Order  of  payment  if  estate  insolvent. — If  the  assets  which 
can  be  appropriated  for  the  payments  are  not  sufficient  for  that  pur- 
pose, the  executor  or  administrator  shall,  after  paying  the  necessary 
expenses  of  administration,  pay  the  debts  against  the  estate  in  the 
following  order: 

1.  The  necessary  funeral  expenses ; 

2.  The  expenses  of  the  last  sickness ; 

3.  Debts  due  to  the  United  States ; 

4.  Taxes  and  assessments  due  to  the  Government,  or  any  branch  or 
subdivision  thereof ; 

5.  Debts  due  to  the  Government ; 

6.  Debts  due  to  other  creditors. 

Sec.  765.  Dividends  to  be  paid  in  proportion  to  claim. — If  there 
are  not  assets  sufficient  to  pay  the  debts  of  any  one  of  the  aforesaid 
classes,  after  paying  the  preceding  ones,  each  creditor  within  the 
class  for  which  there  are  not  sufficient  assets  for  payment  in  full, 
shall  be  paid  a  dividend  in  proportion  to  his  claim.  No  creditor  of 
any  one  class  shall  receive  any  payment  until  those  of  the  preceding 
class  are  paid. 

Sec.  766.  Estate  of  insolvent  nonresident. — In  case  administration 
is  taken  in  the  Canal  Zone  of  the  estate  of  a  person  who  was  at  the 
time  of  his  decease  an  inhabitant  of  another  country  or  state,  and 
who  died  insolvent,  his  estate  found  in  the  Canal  Zone  shall,  as  far  as 
practicable,  be  so  disposed  of  that  his  creditors  here  and  elsewhere, 
may  receive  each  an  equal  share  in  proportion  to  their  respective 
debts. 

Sec.  767.  Payment  of  claims  outside  the  Canal  Zone,  against  in- 
aoleent  residenfs  estate. — If  it  appears  to  the  court  having  jurisdic- 


170  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

tion  of  the  estate  that  claims  have  been  duly  proven  in  another  state 
or  country  against  the  estate  of  an  insolvent  debtor,  who  was  at  his 
decease  an  inhabitant  of  the  Canal  Zone,  the  executor  or  adminis- 
trator within  the  Canal  Zone  having  had  knowledge  of  the  presenta- 
tion of  such  claims  under  foreign  jurisdiction,  and  an  opportunity 
to  contest  their  allowance,  such  court  shall  receive  a  certified  list 
of  such  claims,  when  perfected  in  such  other  state  or  country,  and 
add  the  same  to  the  list  of  claims  proven  against  the  estate  of  the 
deceased  person  in  the  Zone,  so  that  a  just  distribution  of  the  whole 
estate  may  be  made  equally  among  all  creditors,  according  to  their 
respective  claims;  but  the  benefit  of  this  and  the  preceding  sec- 
tions shall  not  be  extended  to  the  creditors  in  another  state  or  coun- 
try, if  the  property  of  such  deceased  person  there  found  is  not  ap- 
propriated to  the  creditors  residing  in  the  Canal  Zone  with  other 
creditors,  according  to  their  respective  debts. 

Sec.  70S.  Decree  for  payment  of  debts. — Upon  the  filing  of  the 
executor's  or  administrator's  report,  the  court  shall  order  the  pay- 
ment of  the  debts  and  the  distribution  of  the  assets  received  by 
the  executor  or  administrator  at  the  time,  for  that  purpose,  among 
the  creditors,  as  the  circumstances  of  the  estate  require,  according 
to  the  provisions  of  this  chapter. 

Sec.  7G9.  ///  case  of  appeal. — If  exceptions  have  been  taken  from 
the  action  of  the  executor  or  administrator  in  rejecting  a  claim,  the 
court  may  suspend  the  order  for  the  payment  or  may  order  the  distri- 
bution among  the  creditors  whose  claims  are  uncontested,  leaving  in 
the  hands  of  the  executor  or  administrator  sufficient  assets  to  pay  the 
claim  disputed  and  appealed. 

When  a  disputed  claim  is  finally  settled,  the  court  having  jurisdic- 
tion of  the  estate  shall  order  the  same  to  be  paid  out  of  the  assets 
retained,  to  the  same  extent  and  in  the  same  proportion  with  the 
claims  of  other  creditors. 

Sec.  770.  Subsequent  distributions. — If  the  whole  of  the  debts  are 
not  paid  by  the  first  distribution  and  if  the  whole  assets  are  not  dis- 
tributed, or  other  assets  afterwards  come  into  the  hands  of  the  ex- 
ecutor or  administrator,  the  court  may  from  time  to  time,  make 
further  order  for  the  distribution  of  assets. 

'Sec.  771.  After  time  fixed  for  payment,  executor  or  administrator 
personally  liable. — When  an  order  is  made  for  the  distribution  of 
assets  among  creditors,  the  executor  or  administrator,  after  the  tune 
of  payment  arrives,  shall  be  personally  liable  to  the  creditors  for 
their  debts,  or  the  dividend  thereon,  as  for  his  own  debt:  he  shall 
also  be  liable  on  his  bond. 

Sec.  772.  Court  fo  ft'.r  time  for  /xn/iiKj  debts  and  hijacirs. — The 
court,  at  the  time  of  granting  letters  testamentary  or  of  admmistra- 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  17] 

tion,  shall  allow  to  the  executor  or  administrator  a  time  for  dis- 
posing of  the  estate  and  paying  the  debts  and  legacies  of  the 
deceased  person,  which  time  shall  not,  in  the  first  instance,  exceed 
one  year;  but  the  court  may,  on  application  of  the  executor  or  ad- 
ministrator, from  time  to  time,  as  the  circumstances  of  the  estate 
require,  extend  the  time  not  exceeding  six  months  at  a  time,  nor  so 
that  the  whole  time  allowed  to  the  original  executor  or  administrator 
shall  exceed  two  years. 

Sec.  773.  Hearing  on  question  of  extending  time. — When  an  ex- 
ecutor or  administrator  makes  application  to  have  the  time  for  pay- 
ing debts  or  legacies  extended  beyond  one  year,  the  court  shall 
appoint  a  time  for  hearing  and  deciding  on  such  application,  and 
cause  notice  thereof  to  be  given  to  all  persons  interested,  by  publica- 
tion two  weeks  successively  in  a  newspaper  of  general  circulation 
in  the  Zone,  to  be  designated  by  the  court;  and  an  order  extending 
the  time  shall  not  be  granted  unless  such  notice  has  been  given. 

Sec  774.  Successor  of  executor  or  administrator  dying,  mag  hare 
time  extended. — When  an  executor  or  administrator  dies  and  a  new 
executor  or  administrator  of  the  same  estate  is  appointed,  the  court 
ma}'  extend  the  time  allowed  for  the  payment  of  the  debts  or  legacies 
beyond  the  time  allowed  to  the  original  executor  or  administrator, 
not  exceeding  six  months  at  a  time,  and  not  exceeding  six  months 
beyond  the  time  which  the  court  might  have  allowed  to  such  original 
executor  or  administrator ;  and  notice  shall  be  given  of  such  applica- 
tion and  of  the  time  and  place  of  hearing,  as  required  in  the  preceding 
section. 

CONTINGENT   CLAIMS. 

Sec.  775.  Claims  may  be  presented  to  executor  or  administrator.— 
If  a  person  is  liable  as  surety  for  deceased,  or  has  other  contingent 
claims  against  his  estate  which  can  not  be  proved  as  a  debt  before  the 
executor,  the  same  may  be  presented  with  the  proof,  to  the  executor, 
who  shall  state  in  his  report  that  such  claim  was  presented. 

Sec.  77G.  Estate  to  be  retained  to  meet  claims. — If  the  court  is  sat- 
isfied from  the  report  of  the  executor,  or  from  proofs  exhibited  to  it, 
that  such  contingent  claim  is  valid,  it  may  order  the  executor  to 
retain  in  his  hands  sufficient  estate  to  pay  such  contingent  claim. 
when  the  same  becomes  absolute,  or  if  the  estate  is  insolvent,  suffi- 
cient to  pay  a  portion  equal  to  the  dividend  of  the  other  creditor-. 

Sec.  777.  Claim  becoming  absolute  in  two  years,  how  allowed. — 
If  such  contingent  claim  becomes  absolute  and  is  presented  to  the 
court,  or  to  the  executor  or  administrator,  within  two  years  from  the 
time  limited  for  other  creditors  to  present  their  claims,  it  may  be 
allowed  by  the  court  if  not  disputed  by  the  executor  or  administrator. 


172  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

and,  if  disputed,  it  may  be  settled  by  the  court  upon  a  hearing  as  in 
the  case  of  exceptions  to  an  executor's  report. 

Sec.  778.  Such  creditor  to  receive  in  same  proportion  as  others. — 
If  such  contingent  claim  is  allowed,  the  creditors  shall  receive  pay- 
ment to  the  same  extent  as  the  other  creditors,  if  the  estate  retained 
by  the  executor  or  administrator  is  sufficient.  But  if  the  claim  is  not 
established  within  the  time  limited  in  the  preceding  section,  or  if  the 
assets  retained  in  the  hands  of  the  executor  or  administrator  are  not 
exhausted  in  the  pa}<ment  of  such  claims,  such  assets,  or  the  residue 
of  them,  shall  be  disposed  of  by  the  order  of  the  court  to  the  persons 
entitled  to  the  same;  but  the  assets  so  distributed  shall  still  remain 
subject  to  the  liability  of  the  claim  when  established,  and  the  cred- 
itor may  maintain  an  action  against  the  distributees  to  recover  his 
debt,  and  such  distributees  and  their  estates  shall  be  liable  for  such 
debts  in  proportion  to  the  estate  they  have  respectively  received  from 
the  property  of  the  deceased. 

Chapter  XLII. 

ESCHEATS. 

Sec.  779.  Procedure  when  person  dies  intestate  without  heirs. — 
When  a  person  dies  intestate,  seized  of  real  or  personal  property  in 
the  Canal  Zone,  leaving  no  heir  or  person  by  law  entitled  to  the  same, 
the  collector  of  revenues  of  the  Zone  or  other  officer  discharging  his 
duties  may  file  a  petition  with  the  court  of  the  circuit  where  the 
intestate  resided  or  any  portion  of  his  real  estate  lies  for  an  inquisi- 
tion in  the  premises;  the  court  shall  thereupon  appoint  a  time  and 
place  of  hearing  and  cause  a  notice  thereof  to  be  published  in  some 
newspaper  of  general  circulation.  The  notice  shall  recite  the  sub- 
stance of  the  facts  and  request  set  forth  in  the  petition,  the  time  and 
place  at  which  persons  claiming  the  estate  may  appear  and  be  heard 
before  the  court,  and  shall  be  published  at  least  four  weeks  succes- 
sively, the  last  of  which  publication  shall  be  at  least  four  weeks  before 
the  time  appointed  by  the  court  to  make  inquisition. 

Sec.  780.  Decree  of  court  in  such  case. — If,  at  the  time  appointed 
for  that  purpose,  the  court  finds  that  the  person  died  intestate,  seized 
of  real  or  personal  property  in  the  Zone  leaving  no  heir  or  persons 
entitled  to  the  same,  and  no  sufficient  cause  is  shown  to  the  contrary, 
the  court  shall  order  and  decree  that  the  estate  of  the  deceased  in  the 
Canal  Zone,  after  the  payment  of  just  debts  and  charges,  shall  es- 
cheat ;  and  the  said  estate  shall  be  administered  upon  by  the  collector 
of  revenues  and  the  proceeds  be  paid  in  to  the  Zone  treasurer, 
the  proceeds  of  the  personal  estate  for  the  use  of  the  schools  of  the 
administrative  district  where  the  deceased  resided,  and  the  proceeds 
of  the  real  estate  for  the  use  of  the  schools  of  the  respective  admin- 
istrative districts  where  the  real  estate  lies. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  173 

Sec.  781.  Right  of  heir,  and  so  forth,  subsequently  appearing. — 
If  a  devisee,  legatee,  heir,  widow,  husband,  or  other  person  entitled 
to  such  estate,  within  ten  years  from  the  date  of  such  decree,  ap- 
pears and  files  claim  with  the  court  to  such  estate,  he  shall  have  pos- 
session of  the  same,  or  if  sold,  the  government  of  the  Canal  Zone  shall 
be  accountable  to  him  for  the  avails,  after  deducting  reasonable 
charges  for  the  same  of  the  estate ;  but  if  the  claim  is  not  made  within 
the  time  mentioned  it  shall  be  forever  barred. 

Chapter  XLIII. 

DISTRIBUTION    OF    ESTATE. 

Sec  782.  Order  of  distribution. — After  payment  of  the  debts, 
funeral  charges,  and  expenses  of  administration,  and  the  allowance, 
if  any,  made  for  the  expense  of  maintenance  of  the  family  of  de- 
ceased, the  court  shall  assign  the  residue  of  the  estate  to  the  persons 
entitled  to  the  same,  and  in  its  order  the  court  shall  name  the  per- 
sons and  proportions,  or  parts  to  which  each  is  entitled,  and  such 
persons  may  demand  and  recover  their  respective  shares  from  the 
executor  or  administrator,  or  any  other  person  having  the  same  in  his 
possession :  Provided,  however,  That  nothing  in  this  Code  contained 
shall  be  construed  to  alter  the  existing  Panamanian  law  as  to  the 
restriction  of  the  right  of  the  testator  to  disinherit  his  children  or 
other  relatives. 

Sec  783.  Parties  interested  may  have  order. — Such  order  may  be 
made  on  the  application  of  the  executor  or  administrator,  or  of  a 
person  interested  in  the  estate;  but  the  heirs,  devisees,  or  legatees, 
shall  not  be  entitled  to  an  order  for  their  share,  until  the  payment 
of  the  debts  and  allowances  mentioned  in  the  preceding  section,  and 
the  several  expenses  therein  mentioned  have  been  made  or  provided 
for,  unless  they  give  a  bond  with  such  surety  or  sureties  as  the  court 
directs,  to  secure  the  payment  of  such  debts,  expenses  or  allowances, 
or  any  part  thereof  as  remain  unpaid  or  unprovided  for,  and  to  in- 
demnify the  executor  or  administrator  against  the  same. 

Sec  784.  Share  of  child  born  after  making  will. — When  a  child  of 
a  testator  is  born  after  the  making  of  a  will,  and  no  provision  is 
therein  made  for  him,  such  child  shall  have  the  same  share  in  the 
estate  of  the  testator  as  if  he  had  died  intestate;  and  the  share  of 
such  child  shall  be  assigned  to  him  as  in  cases  of  intestate  estates, 
unless  it  was  apparent  from  the  will  that  it  was  the  intention  of  the 
testator  that  no  provision  should  be  made  for  such  child. 

Sec  785.  Share  of  child  or  issue  of  child  omitted  from  will. — 

When  a  testator  omits  to  provide  in  his  will  for  any  of  his  children, 

or  for  issue  of  a  deceased  child  and  it  appears  that  such  omission  was 

made  by  mistake,  or  accident,  such  child,  or  the  issue  of  such  child 

803a -07— m 12* 


174  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

shall  have  the  same  share  in  the  estate  of  the  testator  as  if  he  had 
died  intestate,  to  be  assigned  to  him  as  in  the  case  of  intestate  estates. 

Sec.  786.  From  what  part  of  estate  such  shares  taken. — When  a 
share  of  a  testator's  estate  is  assigned  to  a  child  born  after  the  making 
of  the  will,  or  to  a  child  or  issue  of  a  child  omitted  in  the  will,  the 
same  shall  first  be  taken  from  the  estate  not  disposed  of  by  the  will, 
if  there  is  any,  and  if  there  is  not  sufficient  so  much  as  is  necessary 
shall  be  taken  from  the  devisees  or  legatees  in  proportion  to  the  value 
of  the  estate  they  respectively  receive  under  the  will;  but  if  the 
obvious  intention  of  the  testator  as  to  some  specific  devise  or  bequest, 
oi'  other  provision  of  the  will,  would  thereby  be  defeated,  such 
specific  devise,  legacy,  or  provision,  may  be  exempted  from  such  ap- 
portionment and  a  different  apportionment  adopted,  in  the  discretion 
of  the  court. 

Sec  787.  Devisee  dying  before  testator. — When  a  devise  or  legacy 
is  made  to  a  child  or  other  relation  to  the  testator,  and  the  devisee 
or  legatee  dies  before  the  testator,  leaving  issue  surviving  the  tes- 
tator, such  issue  shall  take  the  estate  so  given  as  the  devisee  or  legatee 
would  have  done,  if  he  had  survived  the  testator,  unless  a  different 
disposition  is  required  by  law. 

Sec  788.  Share  of  person  absent  and  unheard  of. — If  a  person  en- 
titled to  a  distributive  share  of  the  estate  of  a  deceased  person  is  ab- 
sent and  unheard  of  for  ten  years,  either  before  or  after  the  death 
of  such  deceased  person,  the  court  may  two  years  after  the  deceased 
person's  death  order  the  share  of  such  absent  person  distributed 
among  his  lineal  heirs,  if  he  has  any,  otherwise  among  the  heirs 
of  such  deceased  person ;  but  if  such  absent  person  proves  to  be  alive 
he  shall  be  entitled  to  his  estate  notwithstanding  such  distribution, 
and  may  recover  any  portion  thereof  which  any  one  has  received 
under  such  order;  and  before  an  order  is  made  for  the  payment 
or  distribution  of  any  money  or  estate  herein  authorized,  the  court 
shall  cause  the  same  notice  to  be  given  as  upon  the  settlement  of  an 
administrator's  account,  and  such  other  notice,  by  publication  or 
otherwise,  as  the  court  deems  proper. 

Sec  780.  Adrancement  to  lineal  heirs. — Estate,  real  or  personal, 
given  by  the  intestate  in  his  lifetime  to  a  child  or  lineal  descendant, 
shall  be  reckoned  toward  the  share  of  such  heir,  and  for  that  purpose 
shall  be  considered  a  part  of  the  estate  of  the  intestate,  under  the 
following  circumstances  only : 

1.  When  in  the  gift  or  grant  it  is  expressed  to  be  an  advancement; 

2.  When  such  estate  is  charged  to  the  child  or  lineal  descendant, 
in  writing,  by  the  deceased  upon  his  books  or  papers ; 

3.  When  such  estate  is  acknowledged  as  such  by  the  child  or  lineal 
descendant  in  writing: 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  175 

4.  When  personal  estate  is  delivered  expressly  as  advancement  be- 
fore two  witnesses  requested  to  take  notice  of  it.  If  the  amount  so 
advanced  exceeds  the  share  of  the  heir,  he  shall  be  excluded  from  any 
further  share  in  the  estate;  but  he  shall  not  be  liable  to  refund  any 
part  of  the  share  so  advanced;  and  if  the  advancement  is  less  than 
the  share  of  such  heir,  he  shall  receive  such  further  sum  as,  with 
such  advancement,  will  be  equal  to  his  legal  share  in  the  estate.  If 
the  amount  so  advanced  is  in  real  estate,  the  same  shall  be  set  off, 
first,  toward  the  heir's  share  of  real  estate,  and  if  more  than  his 
share  of  real  estate,  the  balance  shall  be  set  off  toward  his  share  of 
personal  estate,  and  if  the  advancement  is  in  personal  estate,  the 
same  shall  be  set  off,  first,  toward  the  heir's  share,  in  personal  estate, 
then  toward  his  share  in  the  real  estate.  But  if  the  heirs  consent, 
a  different  application  of  the  advancement  may  be  made. 

If  the  child  or  other  lineal  descendant,  to  whom  such  advancement 
is  made,  dies  before  the  intestate,  the  advancement  shall  be  reckoned 
toward  the  share  of  the  representative  of  such  child,  or  other  lineal 
descendant,  as  it  would  be  reckoned  toward  the  share  of  the  heir, 
if  living. 

Where  the  value  of  the  advancement  is  expressed  in  the  conveyance, 
or  the  charge  of  the  same,  or  in  the  acknowledgment  of  the  person 
receiving  it,  or  by  the  intestate  at  the  time  of  delivering  it  before 
two  Avitnesses,  such  advancement  shall  be  taken  to  be  of  the  value 
so  expressed;  otherwise  it  shall  be  estimated  according  to  the  value 
at  the  time  of  making  it. 

Sec.  790.  Questions  as  to  advancement  to  be  determined  by  the 
court.— Questions  as  to  advancement  made,  or  alleged  to  have  been 
made,  by  the  deceased,  to  any  heirs  or  lineal  descendants,  may  be 
heard  and  determined  by  the  court  having  jurisdiction  of  the  estate, 
and  shall  be  specified  in  the  decree  directing  the  distribution  of  the 
estate;  and  the  final  decree  of  the  court,  either  originally  or  on  appeal, 
shall  be  binding  on  the  person  interested  in  the  estate. 

Sec  791.  Partition  of  an  estate  already  assigned. — Where  the  real 
estate  assigned  to  two  or  more  heirs,  devisees,  or  legatees  is  in  com- 
mon and  undivided,  and  their  respective  shares  are  not  separated 
and  distinguished,  partition  and  distribution  of  the  same,  wherever 
situate,  may  be  made,  upon  application  to  the  court  or  judge  having 
jurisdiction  of  the  estate  by  any  party  in  interest,  by  petition  for 
that  purpose.  Upon  the  filing  of  the  petition  the  court  or  judge 
shall  appoint  commissioners  to  make  the  partition,  and  the  proceed- 
ings of  such  commissioners,  and  of  the  court  in  its  action  upon  the 
report  of  the  commissioners,  shall  be  in  all  respects  the  same  as  in  this 
Code  provided  for  partition  of  real  estate  by  action.  Such  partition 
may  be  made  although  some  of  the  original  heirs  or  devisees  have 


176  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

conveyed  their  shares  to  other  persons;  and  such  shares  shall  be 
set  to  the  persons  holding  the  same  as  they  would  have  been  to  the 
heirs  or  devisees.  The  whole  estate  may  be  assigned  to  one  or  more 
of  the  heirs  or  may  be  sold  under  the  directions  of  the  court  as  pro- 
vided in  this  Code  in  relation  to  partition  of  real  estate  by  action. 
The  fees  of  the  commissioners  shall  be  the  same  as  provided  in  this 
Code  for  commissioners  for  partition  of  real  estate  by  action. 

Sec.  792.  Expenses  of  partition  may  he  paid  from  estate. — If.  at 
the  time  of  partition  or  distribution  of  the  estate,  the  executor  or 
administrator  has  retained  suflicient  effects  in  his  hands  which  may 
lawfully  be  applied  for  that  purpose,  the  expenses  of  such  partition 
or  distribution  may  be  paid  by  such  executor  or  administrator  when 
it  appears  equitable  to  the  court  and  not  inconsistent  with  the  inten- 
tion of  the  testator;  otherwise,  they  shall  be  paid  by  the  parties 
in  proportion  to  their  respective  shares  or  interest  in  the  premises, 
and  the  apportionment  shall  be  settled  and  allowed  by  the  court, 
and,  if  any  person  interested  in  the  partition  does  not  pay  his  pro- 
portionate share,  the  court  may  issue  an  execution  in  the  name  of 
the  executor  or  administrator  against  the  party  not  paying,  for  the 
sum  assessed. 

Sec  793.  Recording  the  decrees  of  partition  of  estate. — Certified 
copies  of  final  orders  of  the  court,  relating  to  the  estate  or  the  parti- 
tion thereof,  shall  be  recorded  in  the.  registry  of  land  titles  of  the 
circuit  where  the  land  is  situated. 

Chapter  XLIV. 

ADOPTION  AND  CUSTODY  OF  MINORS. 

Sec  794.  How  a  child  may  be  adopted. — An  inhabitant  of  the 
Canal  Zone,  not  married,  or  a  husband  and  wife  jointly,  may  peti- 
tion the  Circuit  Court  of  the  circuit  in  which  they  reside  for  leave 
to  adopt  a  minor  child;  but  a  written  consent  must  be  given  for 
the  adoption  by  the  child,  if  of  the  age  of  fourteen  years,  and  by 
each  of  his  or  her  living  parents  who  is  not  hopelessly  insane  or  in- 
temperate, or  has  not  abandoned  such  child,  or  if  there  are  no  such 
parents,  or  if  the  parents  are  unknown,  or  have  abandoned  such  child, 
or  if  they  are  hopelessly  insane  or  intemperate,  then  by  the  legal 
guardian,  or  if  there  is  no  such  guardian,  then  by  a  discreet  and 
suitable  person  appointed  by  the  court  to  act  in  the  proceedings  as 
the  next  friend  of  such  child;  but  when  such  child  is  an  inmate  of 
a  charitable  or  eleemosynary  institution  within  the  Canal  Zone,  and 
has  been  previously  abandoned  by  its  parents  or  guardians  thereto, 
then  the  written  consent  of  the  head  of  such  institution  must  be 
given:  Provided,  nevertheless,  That  nothing  herein  contained  shall 


CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE.  177 

authorize  a  guardian  to  adopt  his  ward  before  the  termination  of  the 
guardianship  and  the  final  settlement  an  dapproval  of  his  accounts 
as  guardian  by  the  court. 

Sec.  795.  Adoption  by  stepfather. — Any  inhabitant  of  the  Canal 
Zone,  being  the  husband  of  any  woman  who  has  a  minor  child  by  a 
former  husband,  may  petition  the  court  of  the  circuit  in  which  he 
resides  for  leave  to  adopt  such  minor  child  and  for  a  change  in  the 
name  of  such  child;  but  the  written  consent  must  be  given  to  the 
adoption  try  the  child,  if  of  the  age  of  fourteen  years,  and  by  the 
mother  of  such  child,  if  she  is  not  hopelessly  insane  or  intemperate,  or 
if  such  mother  is  hopelessly  insane  or  intemperate,  then  by  the  legal 
guardian  of  such  child,  or  if  there  is  no  such  guardian,  then  by  a 
discreet  and  suitable  person  appointed  by  the  court  to  act  in  the  pro- 
ceedings as  the  next  friend  of  such  child  or  children. 

Sec.  796.  Order  of  the  court. — When  the  foregoing  provisions  are 
complied  with,  if  the  court  is  satisfied  with  the  ability  of  the  peti- 
tioner to  bring  up  and  educate  the  child  properly,  having  reference 
to  the  degree  and  condition  of  the  child's  parents  and  the  fitness  and 
propriety  of  such  adoption,  it  shall  make  an  order  setting  forth  the 
facts  and  declaring  that  from  that  date  said  child,  to  all  legal  intents 
and  purposes,  is  the  child  of  the  petitioner  and  that  its  name  is 
thereby  changed.  The  order  shall  be  recorded  in  the  records  of  the 
court. 

Sec.  797.  Effect  of  the  order. — The  natural  parents,  except  when 
such  child  is  adopted  under  the  provisions  of  the  second  preceding 
section  shall,  by  such  order,  be  divested  of  all  legal  rights  and  obliga- 
tions in  respect  to  the  child,  and  the  child  shall  be  free  from  all 
legal  obligations  of  obedience  and  maintenance  with  respect  to  them. 
Such  child  shall  be  to  all  intents  and  purposes  the  child  and  legal  heir 
of  the  person  adopting  him  or  her,  entitled  to  all  the  rights  and  privi- 
leges, and  subject  to  all  the  obligations  of  a  child  of  such  person 
begotten  in  lawful  wedlock:  Provided,  nevertheless,  That  the  child 
so  adopted  shall  remain  the  legal  heir  of  his  father  and  mother,  and 
in  case  of  the  death  of  the  child,  his  father  and  mother  and  relatives 
by  nature,  shall  remain  his  legal  heirs. 

Sec.  798.  Illegitimate  child. — If  the  child  to  be  adopted  is  illegiti- 
mate, the  consent  of  the  father  to  adoption  shall  not  be  required. 

Sec.  799.  Order  as  to  vagrant,  incorrigible,  neglected,  or  abused 
child. — When  the  parent  or  parents  of  any  minor  child  shall  be  un- 
able through  vagrancy,  negligence,  or  misconduct  to  support  such 
child,  or  if  able,  shall  neglect  or  refuse  to  support  such  child,  or  when 
such  parent  or  parents  shall  unlawfully  beat  or  otherwise  habitually 
maltreat  such  child,  or  cause  or  allow  it  to  engage  in  common  beg- 
ging, the  Circuit  Court  of  the  Circuit  in  which  the  parents  live  or 


178  CODE    OP    CIVIL   PROCFDURE    OF    THE    CANAL   ZONE. 

in  which  the  child  is  found,  if  vagrant,  upon  complaint  by  affidavit 
of  some  reputable  citizen  of  the  Circuit,  in  behalf  of  such  child,  set- 
ting forth  the  facts  bringing  the  case  within  this  section,  may  issue  a 
summons  requiring  such  parent  or  parents  to  appear  and  answer 
such  complaint,  and  if  the  parent  or  parents  can  not  be  found,  the 
summons  may  require  his  nearest  relative  to  appear  in  the  interest 
of  his  parent  or  parents ;  and  if,  upon  hearing,  all  the  matters  com- 
plained of,  the  court  find  the  same  to  be  true,  and  that  it  is  for  the 
best  interest  of  such  child  to  be  taken  from  such  parent  or  parents, 
the  court  may  make  an  order  to  that  effect,  and  it  may  order  the 
placing  of  such  child  in  any  suitable  orphan  asylum  or  children's 
home,  or  with  some  other  benevolent  society,  to  be  taken  and  cared 
for  and  placed  in  homes  found  for  them,  by  adoption  or  otherwise, 
by  such  asylum,  children's  home  or  society. 

Sec.  800.  Children  of  parents  separated  or  divorced. — When  hus- 
band and  wife  are  living  separate  and  apart  from  each  other,  or  are 
divorced,  and  the  question  as  to  the  care,  custody  and  control  of  the 
offspring  of  their  marriage  is  brought  before  a  Circuit  Court,  by 
petition  or  otherwise,  or  rises  as  an  incident  to  any  other  proceeding, 
the  father  and  mother  of  such  offspring  shall  stand  upon  an  equality 
before  the  court  as  to  the  care,  custody,  and  control  of  the  offspring, 
so  far  as  it  relates  to  their  being  either  the  father  or  mother  of  the 
children.  The  Court,  upon  hearing  the  testimony  of  either  or  both 
of  the  parents,  and  such  other  testimony  as  the  court  deems  pertinent, 
shall  decide  which  one  of  them  shall  have  the  care,  custody,  and 
control  of  such  offspring,  taking  into  account  that  which  will  be  for 
the  best  interest  of  the  children :  Provided,  That  if  such  offspring  be 
ten  years  of  age  or  more  they  be  allowed  to  choose  which  parent  they 
prefer  to  live  with,  unless  the  parent  so  selected  by  such  child  be 
unfitted  to  take  charge  of  such  child  by  reason  of  moral  depravity, 
habitual  drunkenness,  incapacity,  or  poverty,  in  which  case  the  court 
shall  determine  the  custodian  of  such  child.  If,  upon  such  hearing,  it 
should  be  proven  to  the  court  that  both  parents  are  improper  persons 
to  have  the  care,  custody,  and  control  of  such  child,  the  court  may, 
in  its  discretion,  either  designate  some  reputable  and  discreet  person 
to  take  charge  of  such  child,  or  may  commit  it  to  any  asylum,  chil- 
dren's home,  or  other  similar  benevolent  society  within  the  Canal  Zone. 
The  court  may  order  either  or  both  parents  to  support  or  help  sup- 
port said  child,  irrespective  of  who  may  be  its  custodian.  The 
court  shall  have  full  power  and  authority  to  make  any  order  or 
decree  that  is  just  and  reasonable,  permitting  the  parent  who  is 
deprived  of  such  care  and  custody  of  said  child  to  visit  it  and  to  have 
temporary  custody  thereof. 

Sec.  801.  Appeal. — Either  parent  majT  appeal  from  the  order  of 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  ]  79 

court,  made  in  accordance  with  the  last  preceding  section,  to  the 
Supreme  Court  in  the  manner  provided  for  appeals  in  special  pro- 
ceedings. 

Chapter  XLV. 

APPEALS  IN   SPECIAL  PROCEEDINGS. 

Sec  802.  Appeal  from  settlement  of  account  of  administrator, 
executor,  trustee,  or  guardian. — Any  person  legally  interested  in  a 
final  order,  or  decree,  or  judgment  of  a  Circuit  Court  settling  the 
account  of  an  executor,  administrator,  trustee,  or  guardian,  may 
appeal  from  such  order,  decree,  or  judgment,  to  the  Supreme  Court 
and  such  appeal  shall  be  heard  by  the  Supreme  Court  in  the  manner 
provided  in  this  Code.  All  items  of  the  account  shall  be  open  on 
the  appeal.  The  decision  of  the  Supreme  Court  thereon  shall  be 
final. 

Sec.  803.  Method  of  perfecting  such  appeal. — The  person  thus  ap- 
pealing shall  perfect  his  appeal  within  twenty-one  days  after  the 
entry  of  the  order,  decree,  or  judgment  by  the  Circuit  Court,  by 
filing  with  the  clerk  of  that  court  a  statement  in  writing  that  he 
appeals  to  the  Supreme  Court  from  such  order,  decree,  or  judgment. 
The  clerk  shall  thereupon  transmit  to  the  Supreme  Court  a  certified 
transcript  of  the  account  embraced  in  the  order,  decree,  or  judgment, 
and  of  the  order,  decree,  or  judgment  appealed  from,  and  of  the 
appeal. 

Sec.  804.  Bond  for  appeal. — Before  an  appeal  is  allowed  the  per- 
son appealing  under  the  two  preceding  sections  shall  give  a  satis- 
factory bond  to  the  court,  conditioned  that  he  will  prosecute  the 
appeal  to  effect  and  pay  the  intervening  damages  and  costs  occasioned 
by  such  appeal. 

Sec.  805.  Appeal  in  case  of  allowance  or  disallowance  of  wills. — ■ 
Any  person  interested  in  the  allowance  or  disallowance  of  a  will  by 
a  Circuit  Court,  may  appeal  to  the  Supreme  Court  from  such  allow- 
ance or  disallowance,  by  filing  with  the  Circuit  Court  an  application 
for  an  appeal,  within  twenty  days  after  the  entry  of  the  judgment 
allowing  or  disallowing  the  will,  and  by  the  execution  and  filing  of 
a  bond  such  as  is  provided  in  the  preceding  section.  Upon  the 
filing  of  such  appeal  and  bond,  it  shall  be  the  duty  of  the  clerk 
forthwith  to  transmit  to  the  Supreme  Court  a  certified  copy  of  the 
will,  and  of  all  the  evidence  taken  upon  the  trial,  and  of  the  judg- 
ment of  the  court  thereon,  and  also  the  original  will  itself,  in  case 
any  question  of  the  handwriting  is  involved  in  the  controversy.  In 
case  the  original  will  is  transmitted  to  the  Supreme  Court  the  clerk 
of  the  Circuit  Court  shall  retain  in  his  files  a  certified  copy  thereof. 

Sec.  806.  Appeal  from  decree  of  distribution. — If  there  shall  be  a 


180  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

controversy  before  the  Circuit  Court  as  to  who  the  lawful  heirs  of 
the  deceased  person  are,  or  as  to  the  distributive  share  to  which  each 
person  is  entitled  under  the  law,  the  testimony  as  to  such  contro- 
versy shall  be  taken  in  writing  by  the  judge,  under  oath,  and  signed 
by  the  witnesses.  Any  party  in  interest  whose  distributed  share  is 
affected  by  the  determination  of  such  controversy  may  appeal  from 
the  judgment  of  the  Circuit  Court  determining  such  controversy, 
to  the  Supreme  Court,  within  the  time  and  in  the  manner  provided 
in  the  last  preceding  section,  and  it  shall  thereupon  be  the  duty  of 
the  clerk  of  the  Circuit  Court  forthwith  to  transmit  to  the  Supreme 
Court  a  certified  copy  of  all  the  testimony  taken  upon  that  issue, 
and  of  the  judgment  of  the  court  thereon. 

Sec.  807.  Appeals  allowed  in  other  cases  affecting  settlement  of 
estate. — Any  person  legally  interested  in  any  other  order,  decree, 
or  judgment  of  a  Circuit  Court  in  the  exercise  of  its  jurisdiction  in 
special  proceedings  in  the  settlement  of  the  estates  of  deceased  per- 
sons or  the  administration  of  guardian  and  trustees,  may  appeal 
to  the  Supreme  Court  fiom  such  order,  decree,  or  judgment  when 
such  order,  decree,  or  judgment  constitutes  a  final  determination 
of  the  rights  of  the  parties  so  appealing,  and  the  appeal  shall  be 
effected  in  the  manner  provided  in  the  two  preceding  sections :  Pro- 
vided, That  no  appeal  shall  be  allowed  from  the  appointment  of  a 
special  administrator. 

Chapter  XLVI. 

FORMS    AND   FEES. 

Sec  808.  Forms. — -The  following  forms  may  be  used  in  civil  courts 
in  the  Canal  Zone  in  actions  and  special  proceedings,  and  shall,  as 
near  as  circumstances  will  permit  be  adopted ;  but  alterations  may  be 
made  and  allowed  by  rules  of  court,  and  pleadings  and  process  not 
in  these  forms,  but  in  substantial  compliance  with  the  law,  shall  be 
.sufficient. 

1.  Form  of  general  heading  for  all  written  pleadings  in  an  action. 
United  States  of  America, 

Canal  Zone. 

In  the  Circuit  Court  for  the Circuit. 

Between  A  B.,  plaintiff,  and  C  D.,  defendant,  (or-  in  the  matter  of 
'). 

2.  Form  of  complaint  to  recover  money  lent. — The  plaintiff  says 
that: 

1.  On  the day  of ,  19__,  at ,  he  lent  the 

defendant  the  sum  of  $ repayable  on  demand  (or,  on  the 

day  of 19-_)  with  interest  on  the  same  from  the  said day 


CODE    OP    CIVIL   PROCEDURE    OF    THE    CANAL.   ZONE.  181 

of ,  19 ,  until  payment  at  the  rate  of  __  per  centum  per 

annum. 

2.  The  defendant  has  not  paid  the  said  sum  or  interest  thereon  or 
any  part  of  the  same  (except  as  follows )  ; 

3.  The  plaintiff  prays  judgment  for  the  said  sum  of  $ ,  re- 
maining unpaid,  with  interest  from  the  said day  of , 

19 ,  at  the  above  rate,  together  with  the  costs  of  the  action. 

3.  For  money  received  to  plaintiffs  use. — The  plaintiff  says  that : 

1.  On  or  about  the day  of ,  19 ,  the  defendant  received 

$ (or,  a  certain  bank  check  or  draft  upon  the  bank  of 

amounting  to  $ )  from  one  E.  F.,  for  the  use  of  the  plaintiff; 

2.  The  defendant  has  not  paid  (or  delivered)  the  same; 

3.  The  plaintiff  prays  judgment  for  $ with  interest  at 

per  cent  from  the day  of ,  19 ,  together  with  the  cost 

of  the  action. 

4-  For  price  of  goods  sold  by  a  factor. — The  plaintiff  says  that : 

1.  On  the day  of 19 ,  at ,  he  delivered 

to  the  defendant   (here  state  the  goods  delivered)   for  sale  on  com- 
mission ; 

2.  On  the day  of ,  19 ,  (or,  on  some  day  unknown'  to 

the  plaintiff  before  the day  of 19 ,)    the  defendant 

sold  the  said  merchandise  for  $ ; 

3.  The  commission  and  expenses  of  the  defendant  thereon  amount- 
ing to  $ ; 

If.  On  the day  of ,  19 ,  the  plaintiff  demanded  from 

the  defendant  the  proceeds  of  said  merchandise. 

5.  The  defendant  has  not  paid  the  same. 

6.  The  plaintiff  prays  judgment   for  said  sum  of  $ with 

interest  from  said day  of ,  19 ,  at  the  rate  of  __  per 

cent  per  annum,  together  with  the  costs  of  the  action. 

5.  For  goods  sold  at  a  fixed  price  and  delivered. — The  plaintiff 
says  that: 

1.  On  the day  of ,  19 ,  at ' ,  he  sold  and 

delivered  to  the  defendant   (here  describe  the  goods  sold  and  de- 
livered) ; 

2.  The   defendant  promised   to  pay   $ ,   for  said  goods  on 

delivery  (or,  state  manner  in  which  payment  was  to  be  paid)  ; 

3.  The  defendant  has  not  paid  the  same. 

4.  (Demand  for  judgment  as  in  previous  forms.) 

6.  For  goods  sold  at  a  reasonable  price  and  delivered. — The  plain- 
tiff says  that : 

1.  On  the day  of ,  19 ,  at ,  he  sold  and 

delivered  to  the  defendant  (here  state  the  goods  sold  and  delivered), 
but  no  express  agreement  was  made  as  to  price. 

2.  The  said  goods  were  reasonably  worth  $ 


182  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

3.  The  defendant  has  not  paid  the  same. 

4.  (Demand  for  judgment  as  in  previous  forms.) 

7.  For  goods  made  at  defendant's  request  and  not  accepted. — The 
plaintiff  says  that : 

1.  On  the day  of ,  19__,  at ,  the  defend- 
ant agreed  with  the  plaintiff  that  the  plaintiff  should  make  for  the 
defendant  (here  describe  the  articles),  and  that  the  defendant  should 
pay  for  the  same  upon  delivery  thereof  $ ; 

2.  The  plaintiff  made  the  said  goods,  and  on  the day  of , 

19 ,  offered  to  deliver  the  same  to  the  defendant,  and  has  ever 

since  been  ready  and  willing  so  to  do. 

3.  The  defendant  has  not  accepted  the  goods  or  paid  for  the  same; 

4.  (Demand  for  judgment.) 

8.  For  deficiency  upon  the  sale  of  goods  sold  at  auction. — The 
plaintiff  says  that: 

1.  On  the day  of ,  19__,  at ,  the  plain- 
tiff put  up  at  auction  (sundry  articles  of  merchandise)  subject  to  the 
condition  that  all  goods  not  paid  for  and  removed  by  the  purchaser 
thereof  immediately  after  the  sale  should  be  resold  by  auction  on  his 
account,  of  which  condition  the  defendant  had  notice ; 

2.  The  defendant  purchased  (describe  the  articles)  at  the  said 
auction  at  the  price  of  $ ; 

3.  The  plaintiff  was  ready  and  willing  to  deliver  the  same  to  the 
defendant  on  the  said  date,  of  which  the  defendant  had  knowledge ; 

4.  The  defendant  did  not  take  away  the  said  goods  purchased  by 
him  nor  pay  therefor,  at  the  time  of  said  purchase  nor  since; 

5.  On  the  same  day  at  the  same  place,  the  plaintiff  resold  the  said 
goods  on  account  of  the  defendant  at  public  auction  for  $ ; 

6.  The  expenses  attendant  upon  such  resale  amounted  to  $ ; 

7.  The  defendant  has  not  paid  the  deficiency  thus  arising  amount- 
ing to  $ ; 

8.  (Demand  for  judgment.) 

9.  For  services  at  a  fixed  price. — The  plaintiff  says  that : 

1.  On  the day  of ,  19__,  at ,  the  defendant 

employed  plaintiff  as  clerk  at  a  salary  of  $ per  year  (or  other- 
wise employed  him.  as  the  case  may  be)  ; 

2.  From  the  said  date  until  the day  of ,  19__,  the  plain- 
tiff served  the  defendant  as  clerk  (or  otherwise,  as  the  case  may  be)  ; 

3.  The  defendant  has  not  paid  the  said  salary  (except  the  sum 
of$ ); 

4-   (Demand  for  judgment.) 

10.  For  rent  reserved  in  lease. — The  plaintiff  says  that : 

/.  The  plaintiff,  by  deed,  let  to  the  defendant  a  piece  of  land  (or 
certain  buildings)   for years   (or  months,  or  days  as  the  case 


CODE    OP    CIVIL   PEOCEDUKE    OP    THE    CANAL   ZONE.  183 

may  be),  to  hold  from  the day  of ,  19__,  at  $ a 

year,  payable  quarterly  (or  upon  other  terms,  as  the  case  may  be)  ; 

2.  Of  such  rent quarters  are  due  and  unpaid,  amounting  to 

$ 

3.  (Demand  for  judgment.) 

11.  For  use  and  occupation  at  a  reasonable  rent. — The  plaintiff  says 
that: 

1.  The  defendant  used  and  occupied  the  (land  or  building,  located 

at   ),  belonging  to  the   plaintiff   from   the day 

of ,  19__,  but  no  agreement  was  made  as  to  amount  of  payment 

for  the  use  of  said  premises ; 

2.  The  use  of  the  said  premises  for  the  said  period  was  reasonably 
worth  $ ; 

3.  Defendant  has  not  paid  the  same ; 

4.  (Demand  for  judgment.) 

12.  For  carriage  of  goods.- — The  plaintiff  saj^s  that: 

1.  On  the day  of ,  19 ,  the  plaintiff  at  the  request  of 

the  defendant,  carried  in  his  ship  (wagons,  railroad  cars,  by  hand,  or 
otherwise,  as  the  case  may  be)  certain  goods  (stating  them)  from 
to _____; 

2.  The  defendant  promised  to  pay  the  plaintiff  the  sum  of  $ , 

as  freight  thereon ; 

3.  The  defendant  has  not  paid  the  same  or  any  part  thereof ; 

4.  (Demand  for  judgment.) 

13.  Payee  against  maker  of  promissory  note. — The  plaintiff  says 
that: 

1.  On  the day  of ,  19__,  at ,  the  defendant, 

by  his  promissory  note,  now  overdue,  promised  to  pay  to  the  plaintiff 
$ ,  on  the day  of ,  19 ,  (or days  after  date)  ; 

2.  The  said  note  was  in  the  words  and  figures  following  (here  copy 
note)  : 

3.  The  defendant  has  not  paid  the  same   (except  $ on  the 

day  of ,  19__). 

4.  (Demand  for  judgment.) 

14.  First  endorsee  against  maker  of  note. — The  plaintiff  says  that : 

1.  On  the day  of ,  19 ,  at the  defend- 
ant, by  his  promissory  note,  now  overdue,  promised  to  pay  to  the 

order  of $ on  the day  of 19 (or 

days  after  date). 

2.  The  said endorsed  the  same  to  the  plaintiff. 

3.  The  said  note  and  endorsements  are  in  words  and  figures  fol- 
lowing:  (here  copy)  ; 

4-  The  defendant  has  not  paid  the  same; 

5.  (Demand  for  judgment.) 


184  CODE    OF    CIVIL,   PROCEDURE    OF    THE    CANAL   ZONE. 

15.  Subsequent  endorsee  against  maker. — The  plaintiff  says  that: 

1.  On  the day  of ,  19 ,  at the  defendant, 

by  his  promissory  note,  now  overdue,  promised  to  pay  to  the  order  of 

E.  F.  $ on  the day  of ,  19 ,  (or, days  after 

date)  ; 

2.  The  same  Vas  by  the  endorsement  of  the  said  E.  F.  (and  others, 
if  they  were  endorsers)  transferred  to  the  plaintiff; 

3.  The  said  note  and  endorsements  were  in  words  and  figures  fol- 
lowing:  (here  copy); 

4-  The  defendant  has  not  paid  the  same; 
5.   (Demand  for  judgment.) 

16.  First  endorsee  against  first  endorser. — The  plaintiff  says  that: 

1.  On  the day  of ,  19__,  at E.  F.  by  his 

promissory  note,  now  overdue,  promised  to  pay  to  the  order  of  the 

defendant  $ on  the day  of ,  19 ,  (or days 

after  date)  ; 

2.  The  defendant  endorsed  the  same  to  the  plaintiff; 

3.  The  said  note  and  endorsements  were  in  words  and  figures  fol- 
lowing:  (here  copy); 

4.  On  the day  of ,  19 ,  the  same  was  duly  presented 

for  payment,  but  was  not  paid   (or,  state  facts  excusing  want  of 
presentment)  ; 

5.  The  defendant  had  due  notice  thereof ; 

6.  The  defendant  has  not  paid  the  same; 

7.  (Demand  for  judgment.) 

17.  Subsequent  endorsee  against  maker,  first  and  second  endorser. — 
The  plaintiff  says  that : 

1.  On  the day  of ,  19__,  at the  defendant, 

C.  D.,  by  his  promissory  note,  now  overdue,  promised  to  pay  to  the 

order  of  the  defendant  E.  F.,  $ on  the day  of , 

19 ,  (or, days  after  date)  ; 

2.  The  said  defendant  endorsed  the  same  to  the  defendant,  G.  H., 
who  endorsed  it  to  plaintiff ; 

3.  The  said  promissory  note  and  the  endorsements  thereon  were  in 
the  words  and  figures  following:   (here  copy) 

4.  On  the day  of ,  19__,  the  same  was  presented  (or, 

state  facts  excusing  the  want  of  presentment)  to  the  said  C.  D.  for 
payment,  but  was  not  paid ; 

5.  The  said  E.  F.  and  G.  H.  had  due  notice  thereof ; 

6.  The  defendants,  or  either  of  them,  have  not  paid  the  same ; 

7.  (Demand  for  judgment.) 

18.  On  a  marine  insurance  policy  on  a  vessel  lost  by  the  perils  of  the 
sea. — The  plaintiff  says  that: 

1.  The  plaintiff  was  the  owner  of   (or,  had  an  interest  in)    the 
ship at  the  time  of  its  loss  as  hereinafter  mentioned; 


CODE    OF    CIVIL  PROCEDURE    OF    THE    CANAL   ZONE.  185 

2.  On  the day  of ,  19__,  the  defendant  in  consideration 

of  $ to  him  paid  (or,  which  plaintiff  then  promised  to  pay) 

executed  to  him  a  policy  of  insurance  upon  said  ship,  whereby  he 

promised  to  pay  the  plaintiff days  after  the  proof  of  loss  and 

interest,   all   loss   and   damage  accruing  to  him  by   reason   of  the 
destruction  or  injury  of  the  said  ship  during  its  next  voyage  from 

to whether  by  perils  of  the  sea  of  fire  or 

by  other  causes  therein  mentioned,  not  exceeding  $ ; 

3.  The  said  vessel  while  proceeding  on  the  voyage  mentioned  in 

the  said  policy,  was  on  or  about  the day  of ,  19__,  totally 

lost  by  the  perils  of  the  sea  (or  otherwise)  ; 

Jf.  The  plaintiff's  loss  thereby  was  $ ; 

5.  The  plaintiff  duly   performed   all  the  conditions  of  the   said 
policy  on  his  part; 

6.  The  defendant  has  not  paid  the  said  loss ; 

7.  (Demand  for  judgment.) 

19.  Action  on  a  fire  insurance  policy. — The  plaintiff  says  that: 

1.  The  plaintiff   was   the   owner  of    (or,  had   an   interest   in)    a 

dwelling  house  (or  other  building)  known  as  No. , 

street,  in  the  city  of ,  at  the  time  of  its  destruction  (or 

injury)  by  fire,  as  hereinafter  mentioned; 

2.  On  the day  of ,  19__,  at ,  in  considera-. 

tion  of  $ ,  paid  to  it  (or ,  promised  to  be  paid  to  it)  the 

defendant  executed  to  the  plaintiff  a  policy  of  insurance  on  said 
premises  for  the  amount  of  $ ; 

3.  On  the day  of ,  19__,  the  said   (dwelling  house,  or 

other  building)  was  totally  destroyed  (or  greatly  damaged)  by  fire; 

4.  The  plaintiff's  loss  thereby  was  $ ; 

5.  The  plaintiff  has  duly  performed  all  the  conditions  of  said 
policy  on  his  part; 

6.  The  defendant  has  not  paid  the  said  loss; 

7.  (Demand  for  judgment.) 

20.  For  breach  of  agreement  to  convey  land. — The  plaintiff  says 
that: 

1.  On  the day  of ,  19__,  at ,  the  plaintiff 

and  defendant  entered  into  an  agreement,  in  writing,  under  their 
hands  (here  state  the  terms  of  agreement)  ; 

2.  On  the day  of ,   19__,    (the  date  mentioned  in  the 

agreement,  if  any,)   the  plaintiff  demanded  the  conveyance  of  the 
said  property   from  the  defendant  and  tendered  the  said  sum  of 

$ ,  to  the  defendant,  and  all  conditions  were  fulfilled,  and  the 

time  has  elapsed  necessary  to  entitle  the  plaintiff  to  have  the  said 
agreement  performed  by  the  defendant  on  his  part; 

3.  The  defendant  has  not  executed  any  conveyance  of  the  said 
property  to  the  plaintiff ; 


186  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

4-   (Here  state  damages,  ordinary  and  special.) 

5.  The  plaintiff  prays  judgment  for  $ ,  compensation  for 

breach  of  said  agreement,  together  with  the  costs  of  the  action. 

21.  For  breech  of  contract  to  serve. — The  plaintiff  says  that: 

1.  The  plaintiff  and  defendant  mutually  agreed  that  the  plaintiff 
should  employ  the  defendant  at  (an  annual  or  other)  compensation 

of  $ ,  and  that  the  defendant  should  serve  the  plaintiff   (as 

clerk  or  otherwise),  for  the  term  of ; 

2.  The  plaintiff  has  always  been  ready  and  willing  to  perform  his 
part  of  the  said  agreement,  and  on  the day  of ,  19 ,  of- 
fered to  do  so ; 

3.  The  defendant  entered  upon  the  service  of  the  plaintiff  on  the 

above-mentioned  day,  but  afterwards,  on  the day  of , 

19 — ,  without  just  cause,  refused  longer  to  serve  the  plaintiff  afore- 
said ; 

4-   (Here  state  damages,  ordinary  or  special)  ; 
5.   (Demand  for  judgment.) 

22.  For  breach  of  warranty  of  chattels. — The  plaintiff  says  that : 

1.  On  the of ,  19__,  at ,  the  defendant  war- 
ranted to  the  plaintiff  (a  steam  engine,  or  other  chattel)  to  be  in  good 
working  order,  and  thereby  induced  the  plaintiff  to  purchase  the  same 
of  him,  and  to  pay  him  (or  to  promise  to  pay  him)  $ therefor; 

2.  The  said  (steam  engine  or  other  chattel)  was  not  then  in  good 
working  order,  whereby  the  plaintiff  incurred  expense  in  having  the 
same  (engine)  repaired,  and  lost  the  profit  which  would  otherwise 
have  accrued  to  him  while  the  (engine)  was  under  repair; 

3.  The  expenses  incurred  in  such  repair  was  $ ,  and  the  loss 

of  profit  which  would  otherwise  have  occurred  to  him  while  the 
engine  was  under  repair  was  $ ; 

4.  (Demand  for  judgment.) 

23.  Trespass  on  land. — The  plaintiff  says  that : 

1.  On  the day  of ,  19__,  at ,  the  defend- 
ant entered  upon  certain  land  of  the  plaintiff,  known  as  (insert 
brief  description  of  the  premises)  and  depastured  the  same  with 
cattle,  trod  down  the  grass,  cut  the  timber,  and  otherwise  injured 
the  same; 

2.  The  damages  sustained  by  the  plaintiff  by  reason  thereof  amount 
to  $ ; 

3.  (Demand  for  judgment.) 

24.  For  the  conversion  of  chattels. — The  plaintiff  says  that : 

1.  On  the day  of ,  19__,  at ,  the  plaintiff 

was  in  possession  of  certain  goods  (described  in  the  schedule  hereto 
annexed),  or  (or,  say,  was  in  possession  of  one  hundred  barrels  of 
flour,  for  instance)  of  the  value  of  $ ; 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL    ZONE.  187 

2.  On  that  day,  at the  defendant  converted  the  same 

to  his  own  use  and  wrongfully  deprived  the  plaintiff  of  the  possession 
of  the  same ; 

3.  (Demand  for  judgment.) 

25.  For  damages  and  an  injunction  for  carrying  on  a  noxious  man- 
ufactory.— The  plaintiff  says  that: 

1.  The  plaintiff  is.  and  for years  has  been,  possessed  of  cer- 
tain lands  called situated  at ; 

2.  Continually  since  the day  of ,   19__,  the  defendant 

has  wrongfully  caused  to  issue  from  certain  smelting  works  owned 
by  the  defendant  large  quantities  of  offensive  and  unwholesome  smoke 
and  other  vapors  and  noxious  matter,  which  spread  themselves  over 
and  upon  the  said  lands,  and  corrupt  the  air  and  settle  on  the  sur- 
face of  the  said  lands,  and  still  continues  to  do  so; 

3.  Thereby  the  trees,  hedges,  herbage  and  crops  of  the  plaintiff, 
growing  on  the  said  lands,  were  damaged  and  deteriorated  in  value, 
and  the  cattle  and  live  stock  of  the  plaintiff  on  said  lands  became 
unhealthy  and  divers  of  them  were  poisoned  and  died; 

4.  By  reason  of  the  facts  aforesaid,  the  plaintiff  was  unable  to 
pasture  the  said  lands  with  cattle  and  sheep,  as  he  otherwise  might 
have  done,  and  was  obliged  to  remove  his  cattle,  sheep,  and  farming 
stock  therefrom,  and  has  been  prevented  from  having  so  beneficial 
and  healthy  a  use  and  occupation  of  the  said  lands  as  he  otherwise 
would  have  had; 

0.  The  damages  sustained  by  the  plaintiff  by  reason  of  the  said 
wrongful  acts  of  the  defendant  amount  to  $ 

6.  The  plaintiff  prays  judgment  for  the  said  sum  of  $ dam- 
ages, and  that  a  final  injunction  may  issue  restraining  the  defendant 
from  a  continuance  of  said  wrongful  acts,  or  any  of  them,  and  for 
the  costs  of  this  action. 

26.  For  assault  and  battery,  uith  special  damage. — The  plaintiff 
says  that : 

1.  On  the day  of ,  19__,  at ,  the  defend- 
ant assaulted  and  beat  the  plaintiff; 

2.  The  plaintiff  was  thereby  disabled  from  attending  to  his  busi- 
ness (for  a  period  stated),  and  was  compelled  to  pay  $ ,  for 

medical  attendance  and  nursing,  and  has  been  ever  since  disabled 
from  using  his  right  arm  (or  otherwise  state  the  damage,  as  the  case 
may  be)  ; 

3.  By  reason  of  the  premises  the  plaintiff  sustained  damage  to 
the  amount  of  $ in  all : 

J).   (Demand  for  judgment.) 

27.  For  libel. — The  plaintiff  says  that : 

7.  The  plaintiff  is  and  was  on  and  before  the day  of , 

19__.  a  merchnnt  doing:  business  in  the  citv  of ; 


188  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

2.  On  the day  of ,  19 ,  at the  defendant 

published  in  a  certain  newspaper  called (or  otherwise 

show  how  published),  the  following  words  concerning  the  plaintiff 
(here  insert  the  words  of  the  publication)  ; 

3.  The  defendant  meant  thereby  and  in  said  publication  charged 
that  the  plaintiff  had  been  guilty  of  (here  insert  the  meaning  of  the 
charge) ; 

4.  The  said  publication  was  false  and  malicious; 

5.  By  reason  of  such  false  and  malicious  publication,  the  plaintiff 
was  injured  to  the  amount  of  $ ; 

6.  (Demand  for  judgment.) 

28.  To  recover  possession  of  land,  and  for  damages. — The  plaintiff 
says  that: 

1.  The  defendant  on  the day  of ,  19__,  unlawfully  took 

possession  of  certain  land  (or  building)  belonging  to  the  plaintiff, 
being  (here  describe  the  premises)  ; 

2.  The  defendant  has  retained  possession  of  the  said  land  from  the 
said day  of and  still  retains  possession  thereof,  and  with- 
holds the  same  from  the  plaintiff; 

3.  The  plaintiff  has  sustained  damages  to  the  amount  of  $ in 

loss  of  profits  and  otherwise  from  the  unlawful  retention  of  said 
premises  by  the  defendant; 

4.  The  plaintiff  prays  judgment  for  the  possession  of  said  land, 

and  for  said  sum  of  $ , damages  and  profits,  and  for  costs  of 

the  action. 

29.  For  movable  property  wrongfully  taken. — The  plaintiff  says 
that : 

1.  On  the day  of ,  19__,  at ,  the  plaintiff 

owned  (here  state  fact  showing  the  right  to  the  possession)  the 
goods  mentioned  in  the  schedule  hereto  annexed  (or  describe  the 
goods),  the  value  of  which  is  $ ; 

2.  From  that  day  until  the  commencement  of  this  action  the  de- 
fendant has  detained  the  same  from  the  plaintiff; 

3.  Before  the  commencement  of  this  action,  to  wit,  on  the day 

of ,  19 ,  at ,  the  plaintiff  demanded  the  same  of 

the  defendant,  but  he  wrongfully  refused  to  deliver  them ; 

4.  The  plaintiff  prays  judgment  for  the  possession  of  said  goods, 

or  for  $ ,  damages,  in  case  such  possession  can  not  be  had,  and 

for  $ damages  for  the  detention  thereof,  and  for  costs  of  the 

action. 

30.  For  specific  performance. — The  plaintiff  says  that : 

1.  On  the day  of ,  19__,  the  defendant  was  absolutely 

entitled  to  the  parcel  of  land  described  in  the  agreement  hereto 
annexed; 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL.   ZONE.  189 

2.  On  the  same  day  the  plaintiff  and  defendant  entered  into  an 
agreement  under  their  hands,  a  copy  of  which  is  hereto  annexed; 

3.  On  the day  of ,  19__,  at ,  the  plaintiff 

tendered  $ to  the  defendant  and  demanded  a  conveyance  of 

said  property ; 

If..  The  defendant  then  and  there  refused  to  convey  the  same  to  the 
plaintiff; 

5.  The  defendant  has  not  executed  such  conveyance ; 

6.  The  plaintiff  is  still  ready  and  willing  to  pay  the  purchase 
money  for  the  said  property,  to  the  defendant; 

7.  The  plaintiff  prays  judgment  that  the  defendant  be  ordered  to 
execute  to  the  plaintiff  a  conveyance  of  said  property  in  accordance 
with  the  terms  of  said  agreement,  and  damages  to  the  amount  of 
$ for  withholding  the  same,  and  for  costs  of  the  action. 

31.  Answer,  general  denial. — The  defendant  denies  each  and  every 
allegation  in  each  and  every  paragraph  of  the  plaintiff's  complaint. 

32.  More  specific  answer. — For  answer  to  the  plaintiff's  complaint 
the  defendant  says  that : 

1.  He  admits  (or  denies)  the  first  paragraph; 

2.  He  admits  (or  denies)  the  second  paragraph,  etc. 

33.  Answer  of  duress  to  action  on  promissory  note. — For  answer  to 
the  plaintiff's  complaint  the  defendant  says  that : 

1.  He  admits  each  paragraph  thereof; 

2.  For  special  defense  the  defendant  says  that  the  promissory  note 
sued  on  was  extorted  from  the  defendant  by  threats  of  bodily  harm 
(or  during  imprisonment  brought  about  by  the  plaintiff  for  that  pur- 
pose) and  was  executed  by  the  defendant  under  fear  of  the  same  (or 
from  fear  whije  in  prison).     (In  either  case  state  particulars)  ; 

3.  Said  note  was  executed  by  the  defendant  without  any  considera- 
tion therefor. 

34.  Accord  and  satisfaction. — For  answer  to  the  plaintiff's  com- 
plaint the  defendant  says  that ; 

1.  He  admits  each  paragraph  of  the  complaint; 

2.  For  special  defense  the  plaintiff  says: 

a.  That  on  the day  of 19__,  at the  defend- 
ant delivered  to  the  plaintiff  the  promisory  note  of  ( ); 

b.  That  the  plaintiff  then  and  there  accepted  the  same  in  full  satis- 
faction and  discharge  of  the  claim  set  up  in  his  complaint. 

35.  Statute  of  limitations. — For  answer  to  the  plaintiff's  complaint 
the  defendant  says  that : 

1.  He  admits  each  paragraph  of  the  complaint; 

2.  For  special  defense  the  defendant  says  that  the  cause  of  action 

set  forth  in  plaintiff's  complaint  did  not  accrue  within year 

before  the  filing  of  the  said  complaint. 

803  a— 07— m 13* 


190  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL   ZONE. 

36.  Demurrer  stating  grounds  therefor. — The  defendant  demurs  to 
the  complaint ;  and  he  shows  the  following  causes  for  demurrer : 

1st. 
2d. 
3d. 
(Setting  out  each  cause  separately.) 

37.  Demurrer  to  answer. — The  plaintiff  demurs  to  the  answer  (or 
to  the  answer  of  defendant ),  and  he  shows  the  follow- 
ing causes  for  demurrer,  to  wit : 

38.  Subpoena. — 

To ,  of ,  greeting: 

You  are  hereby  commanded  to  be  and  appear  at  the  Circuit  Court 

in  and  for  the circuit  on  the day  of ,  19 — ,  at 

o'clock  in  the  forenoon  (or  afternoon)  then  and  there  to  testify  in  the 
action  of against there  pending. 

Fail  not,  under  penalty  of  the  law. 

Witness  the  Honorable ,  judge  of  said  court  this 

day  of ,  19__, 

Clerk. 

39.  Subpoena  duces  tecum. — 

To of greeting : 

You  are  hereby  required  to  appear  before  the  Circuit  Court  in  and 

for  the circuit,  on  the day  of ,  19 ,  at o'clock 

in  the  forenoon  (or  afternoon)  and  to  bring  with  you  into  court  the 
following  described  (book,  deed,  writing,  or  other  document) ;  it 
being  necessary  to  use  the  same  as  testimony  in  a  cause  there  pend- 
ing, wherein  is  plaintiff  and  is  de- 
fendant. 

Hereof  fail  not,  under  penalty  of  the  law. 

Witness  the  Honorable ,  judge  of  said  court,  this 

day  of ,  19 — , 

Clerk. 

40.  Summons. — 

To ,  of ,  in  the  Canal  Zone: 

You  are  hereby  required  to  enter  your  appearance  in  the  clerk's 

office  of  the  above  named  court  at in  the  said  Canal 

Zone  within  twenty  days  after  the  service  of  this  summons  upon  you, 
exclusive  of  the  day  of  such  service,  if  it  is  served  on  you  in  the  said 
Canal  Zone;  otherwise  within  forty  days;  and  to  answer  the  com- 
plaint of  the  said  plaintiff  which  is  hereto  attached  and  herewith 
served  upon  you,  within  the  time  fixed  by.  the  rules  of  said  Court. 
If  you  fail  to  appear  within  the  time  aforesaid,  the  plaintiff  will 
take  judgment  against  you  by  default  and  demand  from  the  said 
oourt  the  relief  applied  for  in  said  complaint. 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  191 

Witness  the  Honorable judge  of  said  court  this 

day  of ,  19 — , 

Clerk. 

41.  Officer's  return  of  service. — 
United  States  of  America, 

Canal  Zone, Judicial  Circuit. 

I  have  this  day  served  a  copy  of  the  within  complaint  and  process 

upon personally  (or  state  the  other  manner  of  service 

employed). 

Dated  this day  of ,  19__. 

Marshal. 

42.  Order  of  attachment  of  property. — ■ 
United  States  of  America, 

Canal  Zone, Judicial  Circuit. 

To  the  marshal  of  the  Supreme  or  any  Circuit  Court  or  deputy.  greet- 
ing : 

Whereas ,  of ,  (or as  agent 

or  attorney,  of for  the  plaintiff)   has  complained  on 

oath  to  the  Circuit  Court  of  the circuit,  that ,  of 

,  is  justly  indebted  to  the  said (plaintiff), 

in  the  amount  of  $ ,  and  that  said (defendant) 

is  a  nonresident  (or  is  about  to  abscond  from  the  Canal  Zone,  etc), 
(reciting  the  affidavit)  and  whereas  security  has  been  given  by  the 
plaintiff  according  to  law;  we,  therefore,  command  you,  that  you 
attach  the  estate,  real  and  personal,  of  the  said ,  de- 
fendant in  your  circuit,  to  the  value  of  the  said  demands  and  costs 
of  suit,  and  that  you  safely  keep  the  same  according  to  law,  unless 
the  defendant  give  security  to  pay  such  judgment  as  may  be  recov- 
ered in  the  said  action,  in  the  manner  provided  by  law,  and  that  you 

summon  the  said ,  defendant,  if  to  be  found  in  your 

circuit,  to  appear  before  the  Circuit  Court  of  the  said  circuit,  on 

the day  of to  answer  the  above  complaint,  a  copy  of 

which  is  hereto  annexed,  and  do  you  have  there  in  said  court  then 
this  writ  with  your  proceeding  endorsed  thereon. 

Witness  my  hand  this day  of ,  19__, 

,  Judge. 

An  order  for  arrest  of  the  person  of  the  defendant  may  be  in  the 
same  form  with  the  necessary  modifications. 

43.  Ordinary  execution. — 
United  States  of  America, 

Canal  Zone, Judicial  Circuit. 

To  the  marshal  of  the  Supreme  or  any  Circuit  Court  or  deputy,  greet- 
ing : 

We  command  you  that  of  the  goods  and  chattels  of 

(the  defendant)  you  cause  to  be  made  the  sum  of  $ damages, 

together  with  interest  thereon  from  the  date  of  this  execution  until 


192  CODE    OF    CIVIL    PEOCEDURE    OF    THE    CANAL    ZONE. 

the  date  of  payment  at  the  rate  of per  cent  per  annum;   and  the 

further  sum  of  $ for  costs  of  suit,  together  with  your  lawful 

fees  for  the  service  of  this  execution,  all  in  money  of  the  United 

States,  which (the  plaintiff)  recovered  in  our  Circuit 

Court  for  the  said  circuit  on  the day  of ,  19 ,  against 

(the  defendant)   for  damages,  interest,  and  costs,  and 

that  you  render  the  same  to  the  said (the  plaintiff), 

aside  from  your  own  fees  on  this  execution,  and  do  you  likewise 

return  this  writ  into  court  within days  from  date,  with  your 

proceedings  endorsed  hereon.  But,  if  sufficient  personal  property 
cannot  be  found  whereof  to  satisfy  this  execution  and  lawful  fees 
thereon,  then  we  command  you  of  the  land  and  buildings  of  the  said 
defendant,  to  make  the  said  sums  of  money  in  the  manner  required 
by  law,  and  to  make  return  of  your  proceedings  with  this  writ  within 

days  from  date. 

Witness  the  Honorable   ,  judge  of  said   court,  this 

day  of ,  19__. 

Clerk. 

FEES. 

Sec.  809.  Lawful  to  demand  specific  fees  only. — It  shall  be  lawful 
for  the  clerk  of  the  Supreme  Court,  the  clerks  of  the  Circuit  Courts, 
referees,  and  commissioners  appointed  by  the  Circuit  Courts,  bailiffs, 
marshals,  district  judges,  notaries  public,  and  other  officers  and  per- 
sons hereinafter  mentioned,  together  with  their  assistants  and  depu- 
ties, to  demand,  and  receive,  the  hereinafter  mentioned  fees  and  no 
more;  but  all  fees  collected  by  officers  drawing  a  regular  salary  or 
lixed  compensation  from  the  Government  of  the  Canal  Zone  shall  be 
paid  into  the  treasury  thereof. 

Sec.  810.  Clerk  of  the  Supreme  Court. — For  filing  bill  of  excep- 
tions or  an  appeal,  entering  appearance  of  all  the  parties,  entering 
all  orders  of  the  court  in  the  action  or  proceeding,  filing  and  docket- 
ing all  motions,  docketing  of  case  on  all  proper  dockets,  and  indexing 
the  same,  entering  the  final  judgment  or  decree,  recording  the  final 
judgment  or  decree  and  certificate  of  judgment  or  decree  to  the  lower 
court,  taxing  the  costs,  administering  all  necessary  oaths  or  affirma- 
tions in  the  action  or  proceeding,  recording  the  opinion  of  the  court, 
issuing  all  necessary  process  in  the  action  or  proceeding  not  herein 
otherwise  provided  for,  for  each  action  or  special  proceeding,  twelve 
dollars;  but  if  the  record  of  the  decree  or  judgment  or  the  opinion  of 
the  court  contains  more  than  three  hundred  and  fifty  words,  then  an 
additional  fee  shall  be  charged  of  ten  cents  for  each  additional  one 
hundred  words  in  the  record. 

For  furnishing  transcripts  of  the  record  or  copies  of  any  record, 
decree,  judgment,  or  entry  of  which  any  person  is  entitled  to  demand 


CODE    OF    CIVIL    PROCEDURE    OP    THE    CANAL    ZONE.  193 

and  receive  a  copy,  for  each  one  hundred  words,  ten  cents.  For  each 
certificate  not  on  process,  twenty-five  cents.  For  every  search  for 
anything  above  a  year's  standing  and  reading  the  same,  twenty-five 
cents.  I 

For  a  commission  on  all  money  coming  into  his  hands  by  law  or 
order  of  the  court  and  caring  for  the  same,  one-half  of  one  per  cent 
on  all  sums  not  exceeding  one  thousand  dollars,  and  one-quarter  of 
one  per  cent  on  all  sums  in  excess  of  one  thousand  dollars,  and  one- 
eighth  of  one  per  cent  on  all  sums  in  excess  of  ten  thousand  dollars. 

For  any  other  services  as  clerk  not  provided  for  in  this  section  if 
such  there  be,  such  sum  as  the  judges  of  the  Supreme  Court  shall 
fix  by  general  rules. 

Sec.  811.  Fees  to  he  paid  by  the  advancing  party. — The  fees  of 
the  clerk  of  the  Supreme  Court  shall  be  paid  to  him  at  the  time  of 
the  entry  of  the  action  in  the  Supreme  Court  by  the  party  who  en- 
ters the  action  in  the  Supreme  Court  by  bill  of  exceptions,  or  appeal, 
or  otherwise,  and  the  clerk  shall  in  all  cases  give  a  receipt  for  the 
same  and  shall  enter  the  amount  received  upon  his  book,  specifying 
the  date  when  received,  person  from  whom  received,  name  of  action 
in  which  received,  and  amount  received.  If  the  fees  are  not  paid, 
the  court  may  refuse'  to  proceed  with  the  action  until  they  are  paid 
and  may  dismiss  the  bill  of  exceptions  or  appeal  for  failure  to  prose- 
cute if  the  fees  are  not  paid  within  a  reasonable  time  and  after  rea- 
sonable notice. 

Sec.  812.  Clerks  of  Circuit  Courts. — For  filing  all  complaints, 
answers,  motions,  amendments  and  pleadings  for  making  all  entries 
upon  proper  dockets,  for  entering  all  appearances,  for  entering  all 
judgments,  orders,  and  decrees,  for  issuing  all  processes,  preliminary 
and  final,  approving  all  bonds  to  be  by  him  approved,  filing  same, 
for  administering  all  oaths  or  affirmations,  certifying  the  same, 
taxing  costs,  making  necessary  entries  on  indexes,  and  for  all  other 
services  performed  by  him,  his  deputies,  or  assistants,  in  any  one 
action,  eight  dollars. 

For  all  clerical  services  in  the  allowance  of  wills,  granting  letters 
of  administration,  appointment  of  guardians,  trustees,  settlement  of 
the  accounts  of  executors,  administrators,  guardians,  trustees,  and 
recording  final  and  interlocutory  orders,  judgments,  and  decrees 
therein,  filing  all  inventories  and  appraisement,  and  for  all  other 
work'  as  clerk  pertaining  to  any  one  estate,  twelve  dollars;  but  when 
any  record  of  a  final  decree  or  judgment  of  the  court  in  a  special  pro- 
ceeding, including  an  allowance  of  an  account,  or  of  an  inventory  of 
property,  contains  more  than  three  hundred  and  fifty  words,  for 
each  one  hundred  words  in  addition  to  three  hundred  and  fifty  words 
in  such  record,  ten  cents.     For  all  services  as  referee  or  as  commis- 


194  CODE    OF    CIVIL    PROCEDURE    OF    THE    CANAL    ZONE. 

sioner  to  take  testimony  under  appointment  by  the  court,  such  sum 
as  the  judge  shall  allow,  but  the  allowance  shall  be  proportionate 
to  the  other  fees  in  this  section  provided.  For  certifying  the  official 
act  of  a  district  judge  or  other  certificate,  with  seal,  twenty-five 
cents.  For  filing  and  recording  all  papers  relating  to  an  adoption, 
in  each  case  of  adoption,  three  dollars.  For  certified  copies  of  any 
paper,  record,  decree,  judgment,  or  entry  of  which  any  person  is 
entitled  to  demand  and  receive  a  copy,  for  each  one  hundred  words, 
ten  cents.  For  all  copies  of  record,  or  bills  of  exception,  or  testimony 
or  of  other  documents  for  transmission  to  the  Supreme  Court,  ten 
cents  for  each  one  hundred  words. 

For  a  commission  on  all  money  coming  into  his  hands  by  law  or 
order  of  court  and  caring  for  the  same,  one  half  of  one  per  cent  on 
all  sums  not  exceeding  one  thousand  dollars,  and  one  quarter  of  one 
per  cent  upon  all  sums  in  excess  of  one  thousand  dollars,  but  not  in 
excess  of  ten  thousand  dollars,  and  one  eighth  of  one  per  cent  on  all 
sums  in  excess  of  ten  thousand  dollars.  For  any  other  services  as 
clerk,  not  provided  for  in  this  section,  if  such  there  be,  such  sum  as 
the  judges  of  the  Supreme  Court  shall  fix  by  general  rules. 

Sec  813.  Marshal,  and  other  persons  serving  process. — For  execut- 
ing process,  preliminary  and  final  judgments,  and  decrees  of  any 
court,  for  each  mile  of  travel  in  the  service  of  process  going  one  way, 
reckoned  from  the  place  of  service  to  the  place  to  which  the  process  is 
returnable,  ten  cents ;  for  serving  an  attachment  against  the  property 
of  defendant,  one  dollar,  together  with  a  reasonable  allowance  to  be 
made  by  the  court  for  expenses,  if  any,  necessarily  incurred  in  caring 
for  the  property  attached;  for  arresting  each  defendant  fifty  cents; 
for  serving  summons  and  copy  of  complaint  for  each  defendant,  one 
dollar;  but  if  the  complaint  exceeds  three  hundred  and  fifty  words, 
then  for  each  additional  one  hundred  words,  ten  cents;  but  in 
special  proceedings,  testamentary  or  administrative,  where  several 
members  of  a  family  residing  at  the  same  place  are  defendants  the 
fee  for  each  defendant  shall  be  fifty  cents;  for  serving  subpoenas,  for 
each  witness  served,  twenty-five  cents  besides  travel  fees;  for  each 
copy  of  any  process  necessarily  deposited  in  the  office  of  registrar  of 
deeds  ten  cents  for  each  one  hundred  words,  but  not  less  than  fifty 
cents  in  each  case;  for  taking  bonds  or  other  instruments  of  in- 
demnitj'  or  security,  for  each,  twenty- five  cents;  for  executing  a 
writ  of  process  to  put  a  person  in  possession  of  real  estate,  one  dol- 
lar; for  attending  with  prisoner  on  habeas  corpus  trial,  each  day, 
one  dollar;  for  transporting  each  prisoner  on  habeas  corpus  or 
otherwise,  when  required,  for  every  mile  going  and  returning,  ten 
cents;  for  furnishing  food  for  prisoner,  for  each  day,  twenty 
cents;     for   advertising  sale,   besides   printer's   charge,   fifty   cents; 


CODE    OF    CIVIL   PEOCEDUKE    OF    THE    CANAL   ZONE.  195 

for  taking  inventory  of  goods  levied  upon,  to  be  charged  only  when 
the  inventory  is  necessary,  a  sum  fixed  by  the  court  not  exceeding 
the  actual  reasonable  cost  of  the  same  to  be  shown  by  vouchers ;  for 
levying  an  execution  on  property,  one  dollar. 

On  all  money  collected  by  him  by  order  or  any  decree,  execution, 
attachment,  or  any  other  process,  the  following  sums,  to  wit : 

On  the  first  one  hundred  dollars  or  less  two  per  centum. 

On  the  second  one  hundred  dollars,  one  and  one  half  per  centum; 
on  all  sums  between  two  hundred  dollars  and  one  thousand  dollars, 
one  per  centum;  on  all  sums  in  excess  of  one  thousand  dollars,  one- 
half  per  centum. 

Sec.  814.  District  Judges. — For  each  action  tried,  including  entry 
of  action,  judgment,  and  record,  and  swearing  all  witnesses,  one  dol- 
lar; for  each  summons  or  subpoena  containing  one  name  twenty 
cents;  for  each  additional  name  therein  four  cents;  for  issuing 
execution  twenty-five  cents;  for  administering  oath  upon  airy  affi- 
davit or  other  paper  with  certificate  of  oath,  twenty  cents;  for  an 
appeal,  with  proceedings  taking  bond,  making  and  forwarding  tran- 
script of  record,  seventy-five  cents;  for  each  certificate  not  other- 
wise provided  for,  fifteen  cents;  for  writing  and  certifying  deposi- 
tion, including  the  administration  of  oath  to  the  witness,  ten  cents 
for  each  one  hundred  words  in  the  deposition  and  certificate;  for 
certified  copies  of  any  record  of  proceeding  of  which  any  person  is 
entitled  to  receive  a  copy,  ten  cents  for  each  one  hundred  words. 

A  district  judge  upon  receiving  payment  of  fees  allowed  to  him 
b}^  law,  must  render  to  the  person  or  persons  so  paying  an  itemized 
account  thereof. 

Sec.  815.  Notaries  public. — Notaries  public  shall  receive  the  fol- 
lowing fees  only  for  their  services : 

For  protesting  bill  or  note  for  non-acceptance  or  non-payment  and 
giving  notice,  seventy-five  cents;  for  registering  such  protest  and 
making  record,  twenty-five  cents;  for  attesting  letters  of  attorney 
with  seal,  twenty-five  cents;  for  notarial  affidavit  to  an  account  or 
other  writing,  with  seal,  twenty-five  cents;  for  each  oath  or  affirma- 
tion, with  seal,  twenty-five  cents ;  for  taking  proof  of  debts  to  be  sent 
abroad,  twenty- five  cents;  for  a  certified  copy  of  record  and  affidavit 
of  its  correctness,  fifty  cents;  for  writing  depositions  and  affidavit,  ten 
cents  for  each  one  hundred  words;  for  taking  proof  or  acknowledg- 
ment of  any  writing  concerning  real  or  personal  estate  and  certificate 
thereof,  for  each  party,  twenty-five  cents. 

Sec.  81G.  Other  officers  taking  depositions. — Other  officers  taking 
depositions  shall  receive  the  same  compensation  as  above  provided  for 
notaries  public  for  taking  and  certifying  depositions. 

Sec.  817.  Witness  fees. — Witnesses  in  the  Supreme  Court  and  in 
Circuit   Courts,   either  in   actions  or  special  proceedings,  shall  be 


196  CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE. 

entitled  to  one  dollar  per  day  and  ten  cents  for  each  mile  going  to 
the  place  of  trial  from  their  homes  by  the  nearest  route  of  usual 
travel;  but  mileage  shall  be  charged  but  once  in  the  action  unless 
witness  is  compelled  to  attend  more  than  one  term  of  court,  nor  shall 
any  allowance  be  made  for  mileage  except  that  traveled  within  the 
Canal  Zone. 

Witnesses  before  district  courts  and  other  inferior  tribunals  shall 
be  allowed  one  half  dollar  per  day  and  the  travel  fees  above  provided 
and  no  more. 

Fees  to  which  witness  may  be  entitled  in  a  civil  action  shall  be 
allowed,  on  the  affidavit  of  the  witness,  stating  the  number  of  days  he 
has  attended,  the  amount  of  mileage  to  which  he  is  entitled,  to  be 
taken  and  preserved  by  the  clerk  of  the  court,  district  judge  or 
other  officer  before  whom  the  witness  was  called  to  testify,  and  a 
certificate  of  the  allowance  shall  be  given  to  the  witness.  But  on 
final  taxation  of  costs  the  truth  of  the  affidavit  may  be  contested  and 
this  allowance  may  be  set  aside  in  whole  or  in  part  as  the  facts  re- 
quire. A  witness  shall  not  be  allowed  compensation  for  his  attend- 
ance in  more  than  one  case  or  on  more  than  one  side  of  the  same  case 
at  the  same  time,  but  may  elect  in  which  of  several  cases  or  on  which 
side  of  the  case,  when  he  is  summoned  by  both  sides,  to  claim  his 
attendance ;  a  person  who  is  compelled  to  attend  court  on  other  busi- 
ness shall  not  be  paid  as  a  witness. 

Sec.  818.  Other  fees  to  be  -fixed  by  general  rules  of  the  Supreme 
Court. — If  it  shall  appear  that  legal  services  are  required  of  clerks 
of  court,  marshals,  or  officers  of  the  court,  other  than  those  for  which 
specific  fees  have  been  provided  in  this  chapter,  the  judges  of  the 
Supreme  Court  shall  by  general  rules  provide  for  a  scale  of  fees  for 
such  other  services,  which  scale  shall  be  proportionate  to  the  fees 
in  this  chapter  provided  for  similar  services. 

Sec  819.  Suing  in  forma  pauperis. — Any  judge  or  clerk  of  any 
circuit  or  district  court  may  authorize  any  person  to  sue  as  a  pauper 
in  their  respective  courts,  when  he  files  an  affidavit  setting  forth  facts 
showing  that  he  has  good  cause  of  action,  and  that  he  is  unable  to 
procure  a  bond,  when  such  bond  is  required,  accompanied  by  a  certifi- 
cate of  a  practicing  attorney  in  good  standing  that  the  plaintiff  has 
fully  stated  the  facts  of  his  claim  to  him  and  that  the  attorney  be- 
lieves he  has  a  good  cause  of  action,  and  that  he  further  believes  the 
plaintiff  is  unable  to  pay  the  costs  of  the  action  or  procure  bond. 

Chapter  XLVII. 

FINAL    PROVISIONS. 

Sec  820.  Repeal  of  existing  codes,  etc. — All  codes,  statutes,  acts, 
decrees,  and  orders  and  parts  thereof  heretofore  jn'omulgated,  en- 


CODE    OF    CIVIL   PROCEDURE    OF    THE    CANAL   ZONE.  197 

acted  or  enforced  in  the  Canal  Zone,  prescribing  the  procedure  in 
civil  actions  or  special  proceedings  in  any  court  or  tribunal,  and  all 
provisions  of  the  Civil  Code  of  the  Canal  Zone  now  in  force  in  so  far 
as  they  are  in  conflict  with  the  express  provisions  of  this  Code,  are 
hereby  repealed;  and  the  procedure  in  all  civil  actions  and  special 
proceedings  in  all  courts  and  tribunals  shall  hereafter  be  in  accord- 
ance with  the  provisions  of  this  Code :  Provided,  nevertheless ; 

1.  That  the  procedure  in  all  actions  and  special  proceedings  now 
pending  in  the  Supreme  Court  may  be  in  accordance  with  the 
existing  procedure,  except  in  so  far  as  the  Supreme  Court  may 
determine  that  the  provisions  of  this  Code  can  be  conveniently  applied 
to  such  actions  and  procedure ; 

2.  That  all  actions  and  special  proceedings  now  pending  in  Cir- 
cuit Courts,  the  trial  of  which  has  been  commenced  and  not  finished, 
under  the  existing  procedure,  may  be  completed  in  accordance  with 
that  procedure  in  Circuit  Courts  and  in  the  Supreme  Court,  except 
in  so  far  as  the  Judge  of  the  Circuit  Court,  or  the  Supreme  Court, 
may  determine  that  the  provisions  of  this  Code  can  conveniently  be 
applied  to  such  actions  and  proceedings ; 

3.  That  no  action  or  special  proceeding  now  pending  in  a  Circuit 
Court,  the  trial  of  which  has  not  already  been  commenced,  shall  be 
discontinued  or  abated  because  not  commenced  in  accordance  with  the 
provisions  in  this  Code,  but  all  future  procedure  in  such  action  or 
special  proceeding  shall  be  in  accordance  with  the  provisions  of  this 
Code  so  far  as  this  Code  may  be  conveniently  applicable  to  the  con- 
duct of  such  actions  or  proceeding ; 

4.  That  the  Supreme  Court  shall  not  reverse  or  annul  the  pro- 
ceedings in  any  Circuit  Court  in  actions  or  special  proceedings  now 
pending  therein,  because  of  want  of  conformity  in  the  proceedings 
to  the  provisions  of  this  Code,  unless  such  want  of  conformity  shall 
have  impaired  a  substantial  right  of  the  party  attempting  to  set  aside 
such  proceedings; 

5.  That  nothing  in  this  Code  contained  shall  be  so  construed  as 
to  divest  or  injuriously  affect  any  property  right  that  has  already 
become  vested  under  existing  law. 

Sec.  821.  When  to  take  effect. — This  Code  shall  take  effect  on  the 
first  day  of  May,  1907. 


ALPHABETICAL  INDEX. 


[Note.— Figures  in  parentheses  refer  to  subsections.] 

Abatement:  Section. 

New  action  within  one  year  from  death  of  party 146 

Aliens,  extension  of  time  to 147 

Where  judgment  reversed 148 

Where  action  stayed 149 

Marriage,  female  party 150 

Death  of  coplaintiff 151 

Death  of  codefendant 152 

Surviving  parties 153, 154 

Ejectment,  etc.,  death  of  coparty 155-157 

Where  cause  of  action  does  not  survive  to  coparty 158 

Death  of  personal  representative  . . - 159 

Death  of  public  officer  or  trustee 160 

Party  becoming  insane 161 

Partition  suits,  no  abatement  in 162,  163 

Where  action  brought  for  another 164 

W  rita  of  error,  certiorari,  etc 165 

Process  to  any  circuit 166 

Disabilities,  when  available 167, 168 

Directors  and  stockholders  of  corporations 169 

Acknowledgment  or  new  promise  must  be  in  writing 170 

Where  cause  of  action  arises  in  foreign  country 171 

Construction  of  word  ' '  action  " 1 72 

Absence,  time  of,  not  included  in  period  of  prescription 46 

Absent  person: 

Administration  of  estate  of 691 

Share  of,  in  decedent's  estate 788 

Accord  and  satisfaction ;  form  of  answer 808  ( 34) 

Accounting  involved  in  appeal,  may  be  referred  to  commissioner 535 

Accounts: 

Of  guardians 603,  604 

Of  executors 707,  718 

Of  trustees 626 

Of  executor,  trustee,  or  guardian,  appeal  from  settlement  of 802-804 

Action : 

Definition 1 , 1 72 

Who  may  be  parties 107 

W  hen  deemed  commenced _ 45,  404 

Dismissal  of 120 

c  z— 07  m 14  199 


200  ALPHABETICAL    INDEX. 

Adjournment:  Section. 

Of  district  court 57 

Of  Circuit  Court 124 

Administration  of  property: 

Of  person  unheard  of  for  fifteen  years 691 

(See  Executor.) 

Administrator: 

In  general,     i  See  Executor.  | 

Special,  no  appeal  allowed  from  appointment  of 807 

Admiralty;  effect  of  record  of  foreign  court 327 

Adoption.     (See  Minors,  adoption  and  custody  of.) 

Advancement  to  lineal  heirs 789,  790 

Adverse  possession.      (See  Prescription.) 

Advertisement  of  property  to  be  sold  under  execution: 

Real 479 

Pers.  >nal 499 

Affidavit: 

Use  of 364 

Who  may  administer  oath  for — 

In  Canal  Zone 365 

In  United  States 360 

In  foreign  country 367 

Taken  in  United  States  or  foreign  country,  certification  of 368 

Affirmation  of  judgment.     (See  Supreme  Court,  appellate  jurisdiction.) 

Affirmative  allegation,  must  he  proved 314 

Agreed  statement  of  facts 127 

Agreement: 

Includes 303 

Terms  of,  In  »w  proved 303 

When  invalid  unless  made  in  writing 351 

Aliens: 

Extension  of  time  allowed  for  commencement  of  action 147 

Wills  made  by  .'. 671,675 

Alteration: 

In  writing,  effect  on  admissibility  as  evidence 352 

May  be  made  in  prescribed  form  of  pleading  or  process 808 

Amendment  of  pleadings  in  Circuit  Courts 103 

Answer: 

In  Circuit  Court,  definition  and  requisites 87 

Forms  of 808  (31-35) 

Appeal: 

On  interlocutory  order  of  Circuit  Court 110 

<  )n  judgment  of  Circuit  Court  for  contempt 251 

From  action  of  executor  on  claim 729,  769 

Regarding  custody  of  children  of  divorced  parents 801 

From  settlement  of  account  of  executor,  trustee,  or  guardian 802-S04 

In  case  of  allowance  or  disallowance  of  will 805 

From  decree  of  distribution  of  decedent's  estate 806 

In  other  special  proceedings  affecting  settlement  of  estate 807 

May  lie  dismissed  if  fees  not  paid sl  I 

From  district  courts — 

May  he  made  to  what  court 07 

Effect  of 08 

I  low    perfected 69 


ALPHABETICAL    INDEX.  201 

Appeal — Continued. 

From  district  courts — Continued.  section. 

('< )]>y  of  record  to  be  transmitted 70 

Papers  to  be  delivered  to  clerk  of  Circuit  Court 71 

Settlement  of , 72 

Procedure  upon,  in  Circuit  Court 105 

From  Circuit  Courts,  procedure  upon,  in  Supreme  Court — 

In  general 533 

Hearings  upon ; 534,  535 

In  special  proceedings 535 

Correction  of  incomplete  record 538 

{See  Exceptions;  Supreme  Court,  appellate  jurisdiction. ) 

Appearance,  unauthorized 28 

Argument  in  Circuit  ( lourts 1 25 

Arrest  of  defendant: 

Grounds  for 427 

By  whom  order  may  be  granted 428 

When  judge  shall  grant  order 429 

( >bligation  for  damages  in  case  of 430 

Execution  of  order 431 

Discharge  of  defendant  before  execution 432,  433 

Giving  bail 433 

Exoneration  of  bail 434, 435 

Filing  of  order  of  arrest  and  bond 436 

Disposition  of  money  deposited 437 

Reduction  of  1  >ail  or  vacating  order  of  arrest 438 

Defendant  may  be  given  jail  limits 439 

Relief  from  jail  limits 439 

Form  of  order 808  (42) 

Assault  and  battery 808  (26) 

Association,  illegal 208  (3) 

Attachment: 

Grounds  for 440 

By  whom  order  may  be  granted 441 

When  judge  shall  grant  order 442 

<  )1  (ligation  for  damages  in  case  of... 443 

Execution  of  order — 

As  to  movables 444 

As  to  real  property 445 

As  to  stocks  and  shares 44H 

As  to  personalty  Dot  capable  of  manual  delivery 447 

Its  effect  as  to  personalty 448 

Disposition  of  debts,  credits,  or  other  personalty 449 

Return  of  order 450 

Disposition  of  perishable  property 451 

Final  disposition  of  property  if  judgment  for  plaintiff 452 

Collection  of  balance  of  execution 453 

Proceedings  after  return  of  execution  unsatisfied 454 

I  disposition  of  property  if  judgment  for  defendant 455 

Dissolution  of  order 456 

Discharge  on   motion 457 

Right  of  third  person  against  officer 458 

Form  of  i  >rder 808  (42) 

Attorneys.     {See  Lawyers.) 


202  ALPHABETICAL    INDEX. 

Authentication :  Section. 

Of  pleadings 95 

Of  written  instruments 96 

Of  public  writings,  judicial  records,  etc 316-322 

Bail: 

Giving 433 

Exoneration  of 434, 435 

Reduction  of 438 

In  hal leaa  corpus  proceedings 577 

Bar.     (See  Lawyers. ) 

Bond : 

Includes 1 

Of  surety  c<  tmpany 1 

On  appeal  from  district  court 69 

On  bill  of  exceptions 137 

In  case  of  arrest 430,  436 

I  n  case  of  attachment 443 

In  case  of  execution 494-498 

In  case  of  preliminary  injunction 177, 178, 181 

In  proceedings  for  manual  delivery  of  personalty 261,  265,  266 

Of  guardian 590,  596,  612-614 

Of  trustee 626,  628, 629 

Of  executor 678,  679,  697 

In  case  of  appointment  of  receiver 188, 189 

Of  heirs,  etc.,  for  distribution  of  decedent's  estate 783 

On  appeal  in  special  proceedings 804 

Books  of  account,  prima  facie  evidence 302  (6) 

Books  of  science  or  history  admissible  as  evidence ...       336 

Certiorari  proceedings  in  circuit  court : 

Issuance  of  order 228 

Service  of  order 229 

Enforcement  of  order 230 

Final  proceedings 231 

Certifying  judgment  to  inferior  tribunal 232 

Preliminary  injunctions 240 

Expediting  proceedings 241 

In  Supreme  Court 551,  554,  555 

Children: 

When  ran  not  testify '. 398   (2) 

Their  allowance  during  settlement  of  decedent's  estate 719 

Born  after  making  of  will,  share  of 784 

Omitted  from  will,  share  of 785 

(See  Minors,  adoption  and  custody  of. ) 

Circuit  courts,  rules  of 6 

Circumstances,  may  be  shown  for  construction  of  instrument  of  writing 306 

Claims  against  decedent's  estate,  allowance  of 721-732 

( See  Executor.) 

Clergyman,  when  can  not  testily 398  (5) 

Clerk : 

May  be  appointed  temporarily 11 

Can  not  act  as  lawyer 35 

Of  circuit  court — 

<  leneral  duties  of 399 

Books  kept  by 399,402 

T(  i  have  custody  of  moneys 403 

Fees  of 812 


ALPHABETICAL    INDEX.  203 

Clerk — Continued.  Section. 

Of  Supreme  Court — 

Duties  of 557,  558 

Fees  of 810,  811 

Client: 

Funds  of,  retention  by  lawyer 30 

Communications  of,  to  be  kept  inviolate 31 

Code: 

Repeals  conflicting  codes,  etc H20 

When  shall  take  effect 821 

Commissioners: 

In  partition  proceedings  (see  Partition) 195-207 

Fees  of,  how  taxed 532 

Community  property,  descent  of 720 

Complaint: 

In  district  court 51 

In  Circuit  Court — 

Definition  and  requisites 83 

Procedure  of  clerk  when  filed 405 

F<  irms  of 808  (2-30) 

Compromise: 

Can  not  be  made  by  lawyers  without  consent  of  clients 27 

(  tffer  of,  not  admissible  as  evidence 362 

Construction: 

Of  words  found  in  Code 1 

Of  provisions  of  Code 2 

Of  pleadings  in  Circuit  Courts 99 

Of  statute  or  instrument  containing  several  provisions 305 

Of  instrument  where  intention  of  different  parties  not  the  same 310 

Of  statute  or  instrument  in  favor  of  natural  right 311 

Contempt: 

District  judge  may  punish 58 

What  acts  may  be  punished  summarily  by  Circuit  Court 242 

What  other  acts  are  contempt 243 

Accused  entitled  to  be  heard 244 

Right  of  bail 245 

Trial 246 

Punishment 247 

Imprisonment  until  obedience  of  order 248 

Proceedings  when  party  released  on  bail  fails  to  appear 249 

Right  of  court  to  release  person 250 

Judgment  of  Circuit  Court  reviewed  by  Supreme  Court 251 

Continuance  of  trial: 

In  case  of  suspension  of  lawyer 22 

(See  Postponement  of  trial.) 
Contract: 

New  or  continuing,  how  evidenced 1 70 

Consideration  for,  presumed 350  (36) 

[See  Agreement. ) 
Conveyance: 

Instrument  of,  admissible  as  evidence 347 

(See  Agreement;  Contract;  Deed;  Sale.) 

Copartnership,  presumption  of 350  (  27 ) 

Copy,  how  certified  for  use  as  evidence 335 


204  ALPHABETICAL    INDEX. 

Corporation:  section. 

Receivers  of '. . .' L85  (1),  187,  224,  225 

Action  against,  for  usurpation 209,  223-227 

Attachment  of  stocks  or  shares  of 446 

Costs: 

( )rdinarily  allowed  prevailing  party 526 

When  action  dismissed  for  want  of  jurisdiction 527 

Lawyers'  fees  taxed  as 528 

Restriction  of 529 

Amounts  allowed — 

In  district  courts 530 

In  Circuit  Courts 531 

In  Supreme  Court 532 

Taxation  of,  in  habeas  corpus  proceedings 585 

In  probate  proceedings 648 

(See  Fees.) 

Counterclaim: 

Set  forth  by  answer  in  Circuit  Court 88, 89 

Omission  to  set  up 90 

Courts,  powers  of 11 

Credibility  of  witness,  evidence  as  to 315  (16) 

Cross  complaint: 

Filing  of 91 

Judgment  by  default  on 122 

Cross-examination  of  witness 355,  396 

Damages,  no  recovery  from  judges  by  reason  of  judicial  action 9 

Death: 

Of  party,  how  action  may  proceed 112 

Presumption  of 350  (24) 

Of  two  persons  in  same  calamity,  presumption  of  survival 350  (37) 

Of  party,  when  does  not  prevent  judgment 463 

(Sec  Abatements.) 

Debts  against  decedent's  estate.     (See  Executor. ) 

Deceased  person: 

Declarations,  etc.,  of,  when  admissible  as  evidence 299,  300,  315  (4) 

Personal  transactions  with,  when  can  not  be  testified  to 398  (7) 

Estate  of,  when  may  be  settled  without  legal  proceedings 632,  633 

(See  Death;  Abatement;  Probate  proceedings. ) 

Deed : 

Of  officer  selling  under  execution 512 

Of  executor,  effect  of 752,  754 

Default: 

In  district  court — 

Judgment  for  plaintiff  by 53 

Vacating 54 

In  ( 'ircuit  Court — 

Judgment  for  plaintiff  by 121 

Judgment  for  defendant  by,  on  cross  complaint 122 

Defendant: 

When  unknown,  how  designated 104 

(nknown,  how  served  with  summons 413.  414 

Arrest  of.     (See  Arrest  of  defendant.) 

Definitions,  general 1 

Defense,  set  fortb  by  answer  in  Circuit  Court 88 


ALPHABETICAL    INDEX.  205 

Demurrer:  section. 

To  complaint — 

Grounds  for 84 

When  not  allowed 85 

Form  of 808  i  36 ) 

To  answer — 

Filing  of 92 

Grounds  for 93 

Form  of 808  (37) 

To  pleadings  in  general,  proceedings  on 94 

Deposition: 

Written  declaration  under  oath  must  be 369 

May  be  read  by  either  party  at  any  stage  of  action 380 

Of  witness  out  of  Canal  Zone,  to  be  used  in  Zone — 

I  n  what  cases  taken , 370 

How  taken 372-374 

Trial  not  delayed  pending 375 

Use  of , 376 

of  witness  within  Canal  Zone,  to  be  used  in  Zone — 

In  what  cases  taken 371 

How  taken 377-379 

Use  of 378 

To  be  used  outside  of  Canal  Zone — 

In  what  cases  may  be  taken 381-383 

Howr  taken 384 

For  perpetuation  of  testimony — 

In  what  cases  may  be  taken 386 

Order  of  judge  for 387 

How  taken 388,  389 

Papers  filed,  prima  facie  evidence  of  regularity 390 

Use  and  effect  of 391, 392 

In  probate  proceedings 647 

Fees  for  taking 815,  816 

Deputies,  powers  of 3 

Descent  of  estate  not  willed 719 

Destitute  litigants: 

Assignment  of  lawyer  for 34 

May  be  authorized  to  sue  in  forma  pauperis 819 

Devise,  liable  for  payment  of  decedent's  debts 758 

Direct  examination,  leading  questions  not  allowed 353 

Directors  of  corporations,  abatement  of  actions  against 169 

Disabilities: 

Exceptions  and  saving  of  rights  on  account  of,  as  to  prescription 41.  44 

When  available 167 

When  two  or  more  coexist 1 68 

Disbarment: 

Causes  for 21 

Institution  and  cost  of  proceedings 24 

Hearing  of  charges 25 

Disinheritance,  existing  law  as  to 782 

Dismissal  of  actions  in  Circuit  Courts 120 

Disqualification  of  judge: 

Grounds  for 8 

Of  district  judge,  who  may  act 66 

Of  circuit  judge,  proceedings  upon 394 


206  ALPHABETICAL    INDEX. 

Distribution  of  decedent's  estate:  Section. 

Among  creditors 764-770 

After  payment  of  debts,  etc 782-793 

Appeal  from 806 

(See  Executor. ) 

District  court,  procedure  in 50-81 

District  judge: 

Definition 1 

Who  may  act  in  case  of  disqualification 66 

Attendance  on  proceeding  to  vacate  judgment 145 

Fees  of 814 

Divorce,  custody  of  children  in  case  of 800,  801 

Docket: 

Of  district  court — 

What  shall  contain 62 

Entry  to  identify 63 

Final  disposition  of 64 

Of  Circuit  Court — 

Requisites  of 399, 400 

New,  preparation  of 401 

Book  of  final  record „ 402 

To  be  open  to  inspection 464 

Of  Supreme  Court 558 

Documents : 

Paper  used 7 

To  accompany  complaint  in  Circuit  Court 83  (4 ) 

Form  of,  in  proceedings  in  Circuit  Court 83  (5) 

Excluded  by  Circuit  Court 83  (9) 

Official,  how  proved 330 

Dollars,  definition 1 

Duress,  form  of  answer  as  to 808  (32) 

Earnings,  when  can  not  be  applied  to  satisfy  judgment 521 

Ejectment: 

Death  of  eoplaintiff 155, 156 

Death  of  codefendant 157 

Embezzlement  of  decedent's  property 738-742 

English  language: 

Shall  be  official 12 

Use  of,  in  Circuit  Court 83  (5-8) 

Entries: 

In  official  docket,  prima  facie  evidence 332 

Original,  what  constitute 345 

Escheats 779-781 

Estate.     [See  Trusts  and  trustees;    Probate  proceedings;    Guardians;    Wills; 

Executor. ) 
Evidence: 

I  're]  londerance  of,  how  determined 291 

Rules  of,  shall  be  uniform 292 

.Matter  judicially  recognized 29.". 

Personal  knowledge  and  hearsay 294 

Regarding   act,   declaration,   or   omission  of  one   party,   does  not   affect 

another 295 

Exception  where  one  derives  real  property  from  another 296 

Exception  where  such  declaration,  etc.,  forms  part  of  transaction 297 


ALPHABETICAL    INDEX.  207 

Evidence — Continued.  section. 

Prima  facie,  definition 298 

Of  contents  of  writing  or  agreement 302,  303 

Required  only  of  material  allegations 312 

Must  be  relevant 313 

Of  affirmative  and  negative  allegations 314 

May  be  given  as  to  what  facts 315 

Public  writings  admissible  as 316 

Printed  laws  of  State  or  country 317 

Attested  copy  of  foreign  law 318 

Oral  proof  of  United  States  or  foreign  unwritten  law 319- 

Of  domestic  judicial  records 320 

Of  foreign  judicial  records 321,  322 

What  may  be  considered  by  Supreme  Court 534, 535 

What  admissible  on  new  trial 542 

Return  of  habeas  corpus,  when  considered  prima  facie 579 

Examination: 

Of  applicant  for  admission  to  the  practice  of  lawT — 

Subjects  upon  which  examined 14 

Place  and  manner  of  holding 16 

Of  judgment  debtor  when  execution  returned  unsatisfied 513,  514,  516-519 

Of.  debtor  of  judgment  debtor,  etc 515 

Of  executor 707 

Exceptions: 

Definition 134 

May  be  made  to  what  rulings 134 

Manner  of  taking 135 

How  perfected 136 

Shall  stay  execution 137 

By  creditors  and  distributees  of  decedent's  estate 729 

Procedure  upon,  in  Supreme  Court — 

In  general 533 

Hearings  upon 534 

Compelling  judge  of  lower  court  to  sign 536 

W  hen  record  incomplete 538 

Dismissal  of 537-539,  811 

To  be  printed -^49 

(See  Supreme  Court,  appellate  jurisdiction.) 
Execution : 

Fn  >m  district  court 65,  502 

Issuance,  form,  and  requisites 465 

Under  special  judgments 466 

Judgment  lien,  lapse  thereof 467 

Exemption  in  favor  of  party  restrained 468 

May  be  obtained  on  judgment,  in  favor  of  whom  and  against  what 470 

After  expiration  of  judgment  lien 471 

Interest  on  judgment 472 

Return  of 473 

Binding  personalty 474 

Property  subject  to 475,  493,  505 

Order  of  levy  under 476 

Property  taken  on,  how  sold 477 

On  concurrent  j  udgments 478 

Ad  vertisement  of  real  property  for  sale 479 

Illegal  sale,  liability  of  marshal 480 


208  ALPHABETICAL    INDEX. 

Execution — Continued.  Section. 

Sale  of  real  estate,  marshal's  certificate 481,  482 

Redemption  of  real  estate  sold  under 483 

Rights  of  purchaser  pending  redemption  period 484 

Rights  of  purchaser  after  lapse  of  redemption  period 485 

Deed  prima  facie  evidence  of  regularity  of  sale • 486 

Perfecting  execution  lien  in  another  circuit 487-489 

In  case  of  death  of  plaintiff 490,  491 

In  case  of  death  of  defendant 492 

Care  of  live  stock  or  other  personalty 493 

Indemnity  bond 494 

Delivery  bond 495-498 

Advertisement  of  personalty  to  be  sold 499 

Postponement  of  sale 500 

Return  of,  against  personalty 501 

From  district  court  on  real  estate  redemptions,  etc 502 

Fraudulent  withholding  of  property 503 

What  property  of  married  woman  exempt  from  execution  against  husband .       504 

Exemptions  from 506 

Claims  by  third  persons  to  property  levied  on 507 

Claim  by  debtor  that  property  is  exempt 508 

Between  same  parties,  may  be  set  off 509 

Several  against  same  property 510 

Against  several,  made  out  of  property  of  one 511 

Who  may  execute  officer's  deed 512 

Examination  of  judgment  debtor,  when  returned  unsatisfied..  513,514,516-519 
Examination  of  debtor  of  judgment  debtor,  when  returned  unsatisfied...       515 

Against  creditor,  may  be  paid  by  debtor 520 

Judge  may  order  property  applied  on 521 

Judge  may  appoint  receiver  and  prohibit  transfers,  etc 522 

Liability  of  receiver 523 

Proceedings  when  judgment  debtor  has  interest  in  real  estate 524 

Proceedings  when  indebtedness  denied  or  another  claims  the  property. . .       525 

Ordinary,  form  of 808  (43) 

Executive  acts,  how  proved 330 

Executor: 

To  present  will  and  accept  or  refuse  trust 662 

Letters  testamentary  to  issue 676 

To  whom  administration  granted 677 

Bond,  general 678 

Bond  when  residuary  legatee 679 

Bond  when  two  or  more  are  appointed 680 

Neglecting  to  give  bond 681 

When  a  minor 682 

Executor  of,  not  to  administer ' 683 

Death,  removal,  etc.,  of — 

In  case  of  vacancy,  who  may  administer 684 

Power  of  new  administrator 685 

Administrator  appointed  to  act  with  survivor 686,  687 

Court  may  remove  or  accept  resignations 688 

Married  woman  may  administer 689 

When  coexecutor  disqualified 690 

Administration  revoked  if  will  discovered 692,693 

Acts  before  revocation  to  be  valid 694 

Special  administrator 695-698 


ALPHABETICAL    IN  l)K\.  209 

Executor — Continued.  Section. 

General  duties — 

May  examine  partnership  books  and  property ,  699,  700 

Shall  keep  buildings  in  repair 701 

Shall  administer  estate  not  willed 702 

Appraisal  and  inventory 703-706 

Rendition  of  account  and  examination 707 

For  what  to  account 708 

Not  to  profit  by  increase  or  lose  by  decrease  in  value 709 

Accountable  for  proceeds  of  real  estate  sold 710 

When  not  accountable  for  debts  due 711 

Accountable  for  income  from  realty 712 

Accountable  for  neglect  to  raise  money 713 

When  to  be  allowed  money  paid  as  costs 714 

Allowance  for  services 715 

Account,  how  verified 716 

Account  to  be  settled  on  notice 717 

Sureties  on  bond  may  be  party  to  accounting 718 

Allowance  to  widow  and  family,  and  descent  of  estate 719 

Community  property 720 

Claims  against  estate,  allowance  of — 

Notice  of  time  and  place  of  examination 721 

Time  allowed  for  presenting  claims 722,  723 

Executor  to  report 724 

Nc  it  ice  to  certain  claimants  at  time  of  tiling  report 725 

Claims  not  presented,  barred 726 

Estate's  claims  to  be  offset 727 

Claim  of  executor  against  estate 728 

Exceptions  by  creditors  and  distributees 729 

Estate  of  joint  debtor  liable  for  whole  claim 730 

Not  to  be  sued  on  until  presented  and  rejected 731 

In  suit  by  executor,  defendant  may  plead  claim  in  offset 732 

Contingent  claims 775 

Suits  by  and  against — 

Debt  against  estate  not  to  be  sued  on    until  claim    presented  and 

rejected 731 

Actions  to  recover  seizin  and  possession 731 

Suit  may  be  prosecuted  by 732 

Heir  may  not  sue  until  share  assigned 733 

May  be  cited  to  appear 734 

May  compound  with  debtor 735 

Mortgage  debt  due  to  estate 736 

Mortgage  debt  due  from  estate    737 

Embezzlement  or  fraudulent  conveyance  of  property — 

Proceedings  for  recovery 738 

Persons  intrusted  with  estates  may  be  compelled  to  render  account  . .  739 

Kmbezzlement  before  issuance  of  letters 740 

Estate  fraudulently  conveyed  by  deceased  may  be  recovered— 

By  executor 741 

By  creditor 742 

Sale  of  estate — 

Realty  may  1  »e  sold  though  personalty  not  exhausted 743 

When  part  can  not  be  sold  without  injury 744 

Persons  interested  may  prevent  sale 745 


210  ALPHABETICAL    INDEX. 

Executor — Continued.  Bection. 

Sale  of  estate — Continued. 

Court  may  order  personalty  sold 74b' 

Estate  may  be  sold  when  beneficial  to  heirs 747 

To  pay  debts  and  legacies  in  other  countries 748 

Realty  acquired  on  execution,  etc. ,  may  be  sold 749 

Realty  may  be  sold  to  pay  legacies 750 

Regulations  for  license  to  sell 751 

Effect  of  deed 752 

When  executor  dies  pending  sale 753 

When  deceased  under  contract  to  convey 754 

Lands  held  in  trust  to  be  conveyed 755 

Estate  to  be  retained  to  meet  contingent  claims 776 

From  what  estate  debts  to  be  paid — 

Personalty  first  chargeable  for  debts 756 

From  what  part  of  testate  estate  debts  to  be  paid 757 

Legacy  and  devise  liable  for  payment  of  debts 758 

When  executor  to  retain  possession  of  estate 759 

Devisees,  etc.,  in  possession  must  contribute 760-762 

Payment  of  debts — 

Debts  to  be  paid  in  full  when  estate  sufficient 763 

Order  i  if  payment  when  estate  insolvent 764 

Dividends  to  be  paid  in  proportion  to  claims 765 

Estate  of  insolvent  nonresident 766 

Payment  of  claims  outside  Canal  Zone  against  insolvent  resident's  estate. .       767 

Decree  for  payment  of  debts 768 

Suspension  in  case  of  appeal 769 

Subsequent  distributions 770 

When  executor  personally  liable 771 

Time  for  payment,  how  fixed 772-774 

Contingent  claims 778 

( Jontingent  claims,  allowance  and  payment  of 775-778 

Distribution  of  estate — 

Order  of 782,  783 

Share  of  child  born  after  making  of  will 784,  786 

Share  of  child  or  issue  of  child  omitted  from  will 785,  786 

Devisee  dying  before  testator 787 

Share  of  person  absent  and  unheard  of 788 

Advancement  to  lineal  heirs 789,  790 

Partition  of  estate  already  assigned 791-793 

Appeal  from  settlement  of  account  of 802-804 

Experts  to  be  used  in  explaining  certain  writings 309 

Facts: 

Findings  of,  must  be  entered 126 

Agreed  statement  of 127 

Family  council: 

In  guardianship  matters,  Spanish  law  repealed 587 

May  settle  intestate  estate 632,  633 

Father,  natural  guardian 588 

Fees: 

Of  lawyers 29 

Of  executors 715 

Specific,  only  may  be  demanded 809 

Disposition  when  collected  by  salaried  officers 809 


ALPHABELICAL    INDEX.  211 

Fees— Continued.  Section. 

Of  clerk  of  Supreme  Court — 

Enumeration ■. 810 

Must  be  paid  by  advancing  party 811 

Of  clerk  of  circuit  court 812 

Of  marshal  and  other  persons  serving  process 813 

Of  district  judge 814 

Of  notary  public 815 

Of  other  officer  taking  depositions 816 

Of  witness 817 

For  legal  services  for  which  fees  are  not  specifically  fixed  herein 818 

Suit  may  be  brought  in  forma  pauperis 819 

Findings  of  facts,  entry  of 126 

Forcible  entry  and  detainer  of  land  or  buildings: 

General  provisions 73 

Complaint 74 

Trial 75 

( ontinuanee 76 

Judgment 77 

Execution 78,  79 

Judgment  not  conclusive  in  another  action 80 

Appeal 81 

Foreclosure  of  mortgage  on  real  estate: 

W here  action  must  be  instituted 252 

Complaint 253 

Trial  and  judgment 254 

Sale  of  property 255 

Disposition  of  proceeds 256,  257 

Judgment  for  balance  after  sale 258 

Final  record 259 

Foreign: 

Country,  cause  of  action  arising  in 47, 171 

Laws — 

Admissible  as  evidence 317-319 

Effect  in  evidence 327,  329 

Forms 808 

Franchise,  usurpation  of.     (See  Usurpation  of  office  or  franchise.) 
Fraud,  judgment  obtained  through,  may  be  reversed: 

By  Circuit  Court 141-145 

By  Supreme  Court 550 

Fraudulent  conveyance  of  decedent's  property 738-742 

Funeral  expenses,  payment  of 764 

Gender  of  words 1 

General  counsel  may  sue  to  establish  title  to  real  estate 272 

Guardians: 

In  general — 

May  represent  ward  in  partition  proceedings , 206 

Recording  letters  of  guardianship 591 

To  pay  debts  of  ward 598 

To  settle  affairs  of  ward 599 

Management  of  ward's  estate 600 

Intrusting  ward  with  portion  of  estate 601 

Action  in  proceedings  relating  to  partition  of  ward's  estate 602 

Inventory  and  accounts  of 603 

Settlement  of  accounts 604 


212  ALPHABETICAL    INDEX. 

( ruardians— Continued.  Section. 

In  general — Continued. 

Sale  or  reinstatement  of  portions  of  estate 605 

Sales  must  be  for  cash  or  adequate  security 606 

Reinvestment  of  proceeds  of  sale 607 

Examination  of  persons  suspected  of  defrauding  ward.-,  etc 609 

Removal  or  resignation  of 610 

Termination  of  guardianship 611 

B(  md  of 590,  612-614 

Limitations  i  if  action  for  recovery  of  property  sold 615 

( >rders  and  proceedings  to  be  of  record 616 

Guardianships  now  pending,  how  shall  proceed 617 

Appeal  from  settlement  of 802-804 

Ad  litem — 

Appointment  of 109, 110 

Not  affected  by  general  provisions  respecting  guardians 593 

( )f  minors — 

When  and  by  whom  appointed 586 

Spanish  law  as  to  family  council  repealed 587 

Lather  or  mother  natural  guardian 588 

I  )ul  ies  of 589,  590 

Bond  of 590,  612-614 

Testamentary 592 

{See  Guardians  ad  litem. ) 
Of  persons  of  unsound  mind — 

App< untment  of 594,  595 

Powers  and  bond  of 596 

Restoration  of  competency 597 

(See  Guardians  ad  litem.  I 

Of  nonresidents 608 

i  rovernment,  payment  of  irs  debts  against  decedents'  estates 764 

Habeas  corpus: 

T. .  what  shall  extend 560 

Granting  an  issuance  of  writ 561,  565,  566 

Requisites  of  application  for .' 562 

When  shall  not  be  allowed 563 

Not  to  authorize  discharge  of  person  charged  with  offense  committed  in 

another  part  of  Canal  Zone  or  in  United  States,  etc 564 

How  prisoner  may  be  designated 567 

Requisites  of  writ  in  cases  of  confinement,  etc 568 

Form  of  writ  when  person  not  in  custody 569 

How  and  where  may  be  served 570 

How  executed  and  returned 57.1 

When  may  be  returned  to  another  judge  or  court 572 

What  return  shall  state 573 

Return  must  be  signed  and  sworn  to 574 

Adjournment  of  cause 575 

When  prisoner  shall  he  discharged 576 

When  prisoner  may  be  eon  unit  ted  to  jail  or  lei  to  hail 577 

When  prisoner  must  be  com  in  it  ted 578 

When  return  is  evidence,  and  when  only  a  plea 579 

Penalty  upon  clerk  for  refusal  to  issue 580 

Penalty  for  disobeying 581 

Prisoner  set  at  liberty  upon,  not  to  be  again  imprisoned 582 


ALPHABETICAL    INDEX.  213 

Habeas  corpus — Continued.  Section. 

Removal  of  prisoner  from  custody  of  one  officer  to  another 583 

Record  of  proceedings 584 

Fees  and  costs 585 

Handwriting,  proof  of 343 

Hearsay  evidence 294,  299,  300,  315 

Heir.      (See  Wills;  Executor.) 

Historical  works,  admissibility  as  evidence 336 

Holidays,  excluded  in  computing  time -1 

Husband: 

In  what  cases  can  not  testify 398  (3) 

Not  deprived  of  interest  by  will 649 

Illegitimate  child,  adoption  of 70S 

Impeachment  of  witness: 

May  be  made  by  what  party 356,  358 

By  what  evidence 358,  359 

Imprisonment.     (See  Habeas  corpus. ) 

Infants,  their  appearance  in  action 109 

Injunction: 

Definition 1 73 

Preliminary — 

In  proceedings  to  vacate  judgment 143 

Who  may  grant 174 

Circumstances  under  which  may  be  granted 175 

Time  of  granting 176 

Manner  of  obtaining 177 

Proceeding  in  case  of  insufficient  sureties 178 

Notice  to  defendant 179 

Dissolution  or  modification  of 180 

Damages 181 

In  certiorari,  mandate,  and  prohibition  proceedings 240 

Issued  bv  Supreme  Court 554 

Final ' 182 

Enforcement  of 183 

Punishment  for  violation  of 247 

Insanity: 

Party  becoming  insane  during  action 161 

Of  signer  of  writing,  evidence  of 315  (10) 

Of  parent.     (See  Minors,  adoption  and  custody  of.) 

Of  testator 669 

{See  Unsound  mind:  Guardians  of  persons  of  unsound  mind:  Guardians 
ad  litem. ) 

Insolvency  of  decedent's  estate,  how  debts  paid 764-767 

Inspection: 

Docket  of  Circuit  Court  to  be  open  to 464 

Of  writings  shown  witness,  may  be  made  by  opposite  party 361 

Insurance,  form  of  complaint  as  to 808  ( 18-19 ) 

Interest  on  judgment 472,  547 

Intestate  estates,  disposition  of,  when  no  heirs  are  found 779-781 

Interlocutory  or  incidental  orders  of  Ciriuit  Courts 116 

Interpleading 1 1  •"> 

Interpretation: 

( >f  words  in  Code I 

Of  Spanish  language 12 

<  )f  words  in  instrument  of  writing 307,  300 


214  ALPHABETICAL    INDEX. 

Section. 

1  oterpreters,  to  be  used  in  explaining  certain  writings 309 

Interrogatories:  A nnexed  to  commission  for  taking  depositions 373,  374 

Intervention  in  Circuit  Courts 114 

Inventory: 

Of  guardian 603 

Of  executor 703,  706 

Inviolability  of  clients'  communications 31,  398  (4) 

Isthmian  Canal  Commission;  its  officers  may  sue  to  establish  title  to  real 

estate 272 

Jail  limits 439 

Judge: 

Disqualification  of.     i  See  Disqualifications  of  judges. ) 

Civil  liability  of 9 

Can  not  act  as  lawyer 35 

Of  district  court — 

Fees  of 814 

(See  District  court,  procedure  in;  District  judge. ) 
Of  Circuit  Court— 

S]  Trial 394,  395 

Proceedings  when  physically  disabled 395 

Power  of,  in  special  proceedings 559 

Judgment: 

When  may  be  reversed  on  accountof  failure  to  comply  with  rules  of  court.  6 

Of  district  court — 

Rendition 59 

Form 60 

Execution  on _ 65 

In  case  of  several  plaintiffs  or  defendants 117, 118 

For  plaintiff  by  default 121 

Of  subordinate  tribunal  obtained  through,  fraud,  accident,  or  mistake — 

Relief  may  be  granted  by  Circuit  Court 141 

Procedure  to  vacate 142 

Temporary  injunction 143 

Final  judgment 144 

Attendance  of  district  judge 145 

Of  court  in  Canal  Zone  or  United  States,  its  effect  in  evidence 323 

What  deemed  adjudged  on  former  trial 324 

< )f  foreign  tribunal,  its  effect  in  evidence 327,  328 

Of  justice  of  the  peace  or  district  judge,  proof  of 333, 334 

Entry  of 459 

When  reserved 460 

For  affirmative  relief  for  defendant 461 

For  possession  or  value  of  personalty 462 

For  payment  in  United  States  currency 462 

When  party  dies  after  decision  on  issue  of  fact 463 

Lien;  lapse  thereof 467 

Not  to  be  reversed  on  technical  grounds 540 

Of  Supreme  Court,  certificate  to  be  remitted  to  Circuit  Court 543,  544 

When  affirmed  by  Supreme  Court,  interest  may  be  added 547 

Of  Supreme  ( 'ourt,  when  immediate  effect  to  be  given 548 


ALPHABETICAL    INDEX.  215 

Section. 

Judicial  record: 

Domestic,  how  proved 320 

Of  court  in  United  States,  how  proved 320 

Effect  same  as  of  court  in  Canal  Zone,  with  exceptions 326 

Foreign,  how  proved 321,  322 

Effect  in  evidence 327,  328 

Impeachment  of 329 

Jurisdiction : 

Action  dismissed  for  want  of,  judgment  for  costs 527 

Probate,  what  courts  shall  exercise 634-638 

Land ;  title  by  prescription 40 

Landlord' s  title,  when  presumed 349  ( 2 ) 

Language,  official 12,83  (5-8) 

Lawyers: 

Who  may  practice  as 13 

Qualification  of  applicants  for  admission  to  practice 14 

Study  required  of  applicants  for  admission  to  practice 15 

Admission  to  practice 17 

Oath  required  of 18 

Admission  to  practice  of  applicants  from  other  jurisdictions 19 

Roll 20 

Disbarment  of 21 ,  24, 25 

Suspension  of 21,  25 

Authority  to  appear 26 

May  bind  clients 27 

Can  not  compromise  without  consent  of  clients 27 

Unauthorized  appearance 28 

Fees— 

I  low  fixed 29 

Not  to  be  taxed  as  costs  except  as  provided 528 

Costs  allowed  for  attendance  in  the  different  courts 530-532 

Retention  of  clients'  funds 30 

Must  preserve  secrets  of  clients 31 

Substitution  of 32 

Their  employment  not  required 33 

For  destitute  litigants 34 

Who  can  not  act  as .• 35 

Their  liens 36 

Leading  questions 353,  355 

Legacy : 

Liable  for  payment  of  decedent' s  debts 758 

Fixing  time  for  payment  of 772-774 

Sale  of  estate  to  pay.      (See  Executor,  sale  of  estate. ) 

Legitimacy  of  issue,  when  presumed 349  (3) ,  350  (29) 

Libel;  form  of  complaint 808  (27) 

License: 

To  practice  law 14, 17 

To  sell  decedent's  estate 751-755 

Liens: 

Of  lawyers 36 

On  real  estate,  not  affected  by  decree  establishing  title 278 

Created  by  judgments 467 

c  7. — 07  m 15 


216  ALPHABETICAL    INDEX. 

Section. 

Limitations,  statute  of;  form  of  answer 808  (35) 

Litigation ;  when  lawyer  not  required 33 

Mandamus: 

Directing  judge  to  sign  exceptions 536 

In  general 552, 554,  555 

Mandate: 

Issuance  of  order 233 

Damages  in  such  action 234 

Service  of  order 235 

Enforcement  of  order 236 

Preliminary  injunctions 240 

Expediting  proceedings 241 

Manual  delivery  of  personalty: 

Plaintiff  may  tile  notice  claiming 260 

Affidavit  and  obligation  to  be  filed  by  plaintiff 261 

Warrant  of  seizure 262,  263 

When  objection  made  to  sufficiency  of  obligation 264 

Delivery  to  defendant 265 

Defendant's  obligation  and  sureties 265,  266 

Responsibility  of  officer  and  clerk 267 

Claim  of  third  person 268 

Return  of  papers 269 

Final  judgment 270 

Manufactory,  noxious;  form  of  complaint 808  (25) 

Maps;  admissibility  as  evidence 336 

Marriage,  presumption  of 350  (28 ) 

Married  woman: 

As  party  to  action 108 

Certain  property  exempt  from  execution  against  husband 504 

May  make  will 649 

Xot  deprived  of  interest  by  husband's  will 649 

(See  Abatement.) 

Marshal,  fees  of  -- 812 

Material  allegations,  only  need  be  proved 312 

Memorandum,  may  be  referred  to  by  witness 354 

Minors: 

Adoption  and  custody  of — 

How  child  may  be  adopted 794 

Adoption  by  stepfather 795 

Order  of  court,  issuance  of 796 

Effect  of  order 797 

When  child  is  illegitimate 798 

When  child  is  vagrant,  incorrigible,  etc 799 

When  parents  are  separated  or  divorced 800,  801 

Guardian  for.     (See  Guardians  of  minors;  Guardians  ad  litem.) 
Minute  book.     (See  Docket  of  Circuit  Court.) 
Mistake: 

Relief  from  judgment  or  order  taken  on  account  of L06 

Judgments  obtained  through,  may  be  reversed  by  Circuit  Court 141-145 

Money: 

Paid  into  court,  custody  of 403 

Payment  on  judgment  in  United  States  currency 462 


ALPHABETICAL    INDEX.  217 

Mortgage:  Section. 

Debt  due  to  decedent's  estate 736 

Debt  due  from  decedent's  estate 737 

Foreclosure  of.     (See  Foreclosure  of  mortgage.) 

Mother,  when  natural  guardian 588 

Movable  property,  attachment  of 444 

Natural  right,  construction  in  favor  of 311 

Ne  exeat: 

When  writ  may  issue 281 

In  favor  of  eoobligors  or  codebtors 282 

Issuance  by  clerk 283 

Where  returnable 284 

When  judge  absent 285 

Bill  or  petition — affidavit — bond  of  plaintiff 286 

Summons  for  defendant — bond   of  defendant — temporary  departure  no 

breach  287 

Surrender  of  defendant  by  surety 288 

Proceedings  on  return  of  writ 289 

Quashing  or  setting  aside  writ 290 

Negative  allegation,  when  must  be  proved 314 

New  trial: 

May  be  granted  by  Circuit  Court 138 

Application  for 139 

Effect  of  granting 140 

When  may  be  ordered  by  Supreme  Court 533,  534 

May  be  ordered  before  another  judge 541 

Procedure  upon 542 

Nonresident: 

Guardian  of 608 

Settlement  of  estate  of  decedent 636,  766 

Nonsuit,  in  district  court 52,  54 

Notary  public: 

Fees  of 815 

(See  Depositions.) 

Nuisance.     (See  Manufactory,  noxious,  etc.) 

Number,  singular  and  plural 1 

Oath: 

Includes 1 

Court  may  administer 11 

Required  of  lawyers 18 

( )f  referees 130 

For  affidavit,  who  may  administer 365-367 

Of  witness  giving  deposition 385 

Fees  for  administering.     (See  Fees. ) 

Object,  may  be  viewed  by  court 348 

Objection,  when  defendant  deemed  to  have  waived 86 

Offer: 

( )f  compromise,  not  admissible  as  evidence 362 

Unaccepted,  equivalent  to  tender 363 

Office,  usurpation  of.     (See  Usurpation  of  office  or  franchise. ) 

Officer: 

Court  may  control  conduct  of 11 

Misbehavior  of 243  (2) 

When  can  not  testify 398  (6) 


218  ALPHABETICAL    INDEX. 

Section. 

Official  documents,  acts,  and  proceedings,  proof  of 330 

Opinion  of  Supreme  Court,  copy  certified  to  court  below 545 

Oral  testimony 396 

Order: 

Court  may  preserve .. 11 

( )f  trial  in  Circuit  Court 125 

Original  entries,  what  constitute :'>4.ri 

Orphan  asylum: 

1 1 » > \v  child  may  he  withdrawn  from 794 

When  child  may  be  committed  to 799-801 

Ownership,  when  presumed 350  (10-11 ) 

Panamanian  law  in  regard  to  disinheritance 782 

Part  of  acts,  etc.,  given  in  evidence;  remainder  shall  be  available  to  opposite 

party 301 

Parties  to  actions: 

General  provisions 107 

Married  woman  as  party 108 

Infants,  spendthrifts,  and  persons  of  unsound  mind 109 

How  gurdian  ad  litem  appointed 110 

Numerous  parties Ill 

Death  of  party -. 112 

Interpleading  may  be  required  of  conflicting  claimants 113 

Intervention 114 

Necessary  parties  may  1  >e  < >rdered  brought  in 115 

Partition : 

No  abatement  in  suits 162, 163 

Who  may  bring  action 192 

Where  action  must  be  brought 193 

Complaint 194 

Order 1 95 

Duty  of  commissioners 196 

Of  more  than  one  tract 197 

When  estate  can  not  be  divided  without  inconvenience 198 

Report  of  commissioners 199 

Action  upon  c< immissioners'  report 200 

Distribution  of  proceeds  of  sale 201 

Accounting  for  rents  and  profits 202 

Costs  and  expenses,  how  taxed 203 

Fees  of  commissioners 204 

Final  judgment,  its  record  and  effect 205 

Guardian  may  represent  ward 206 

Paramount  rights  and  amicable  partition  not  affected 207 

Action  of  guardian  in  partition  of  ward's  estate 602 

Of  decedent's  estate  already  assigned 791-793 

Partnership: 

Presumption  of 350  (27) 

Executor  may  examine  books  and  property  of 699,  700 

Pauper,  may  be  authorized  to  sue 819 

Pedigree,  evidence  concerning 299,  315  (13) 

Perpetuation  of  testimony.      (See  Depositions.) 

Person,  includes 1 


ALPHABETICAL    INDEX.  219 

Personalty:  Section. 

Attachment  of 444,  447-449 

Judgment  for  possession  or  value  of 462 

First  chargeable  for  debts  against  decedent 7-">H 

Manual  delivery  of.     (See  Manual  delivery  of  personalty.) 

Petition: 

To  establish  title  to  real  estate 272,  273 

(See  Complaint.) 

Pleadings: 

Definition 1 

Allowed  in  Circuit  Court. 82 

Language  and  form 83  (5) 

Translation '. 83  (6) 

A  nthentication 95 

C  !<  mstruction  of  allegations 99 

What  may  be  stricken  out 100 

Specifications  may  be  required 101 

Variance  between  allegation  and  proof 102 

Amendments,  in  general 103 

W hen  name  of  defendant  unknown 104 

Forms 808 

Not  in  accordance  with  given  forms m 808 

Form  of  general  heading . 808  ( 1 ) 

Possession,  adverse.     (See  Prescription.) 

Postponement  of  trial 123 

Prescription : 

To  what  does  not  apply 37 

Limitations  prescribed  elsewhere  in  Code 38 

Period  of,  as  to  real  estate 39 

Title  to  land  by 40 

Exceptions  in  case  of  disability 41 

As  to  civil  actions  other  than  for  recovery  of  real  property 42 

As  to  relief  not  provided  for 43 

Rights  saved  on  account  of  disability 44 

When  action  deemed  commenced 45 

As  to  absent  persons 48 

Action  barred  where  cause  of  action  arose 47 

Rights  saved  in  case  of  reversal  or  failure  otherwise  than  upon  merits. ...  48 

Renewal  of  right  of  action 49 

Presumptions: 

Conclusive 349 

Disputable 350 

Priest,  when  can  not  testify 398  (5) 

Prima  facie  evidence,  definition 298 

Printed  form,  controlled  by  written  portion  of  instrument 308 

Probate  proceedings: 

Circuit  courts  shall  have  jurisdiction 634 

Where  resident's  estate  settled 635 

Where  nonresident's  estate  settled 636 

Court  once  taking,  to  retain  jurisdiction 637 

When  jurisdiction  may  be  contested 638 


220  ALPHABETICAL    INDEX. 

Probate  proceedings — Continued.  Section. 

Records  of  proceedings  and  their  copies 639,  640 

W  hen  clerk  may  sign  instruments 641 

Additional  duties  of  clerk  in  absence  of  judge 642 

Proceedings  when  judge  disqualified 643 

Fees  and  account  thereof 644 

Warrants  and  process  may  be  issued 645 

Orders  may  be  enforced  by  commitment 646 

Depositions  may  be  received 647 

Costs 648 

(See  Wills;  Executor;  Escheats;  Distribution  of  decedent's  estate;  Fraudu- 
lent conveyance  of  decedent's  estate;  Minors,  adoption  and  custody  of; 
Guardians;  Trusts  and  trustees. ) 

Proceedings,  official,  how  proved 330,  332 

Process : 

Definition 1 

General  provisions 5 

Not  in  accordance  with  given  forms - 808 

Fees  for  service  of <s  1  - 

Prohibition: 

Issuance  of  judgment  and  order 237 

Service  of  judgment  and  order 238 

Enforcement  of  order 239 

Preliminary  injunctions 240 

Expediting  proceedings 241 

By  Supreme  Court 553-555 

Prosecuting  attorney: 

Or  assistant,  can  not  act  as  lawyer 35 

May  sue  to  establish  title  to  real  estate 272 

Public  writings,  when  may  be  used  as  evidence 316 

Publicity  of  proceedings  and  records 10,  464 

Questions,  leading 353,  355 

Real  estate: 

I  >efinition 469 

Time  of  commencing  action  for  recovery 30 

Establishment  of  title — 

Power  of  Circuit  Courts 271 

Who  may  sue ,-  272 

Petition 273 

Summons 274 

Clerk's  docket 275 

Publication  of  "Land  title  notice " 275 

Demurrer,  answer 276 

Further  procedure -<  < 

Decree  not  to  affect  liens 278 

Reopening  decree,  subsequent  action 270 

Representatives  may  act 280 

( !<  instructive  notice  of  action 416 

I  nstruments  of  conveyance,  how  proved 347 

Attachment 445 

Acquired  after  making  of  will,  how  affected 650 

Whole  interest  of  testator  to  pass  by  will 651 

Wills  devising,  where  recorded 659 

Foreclosure  of  mortgage.     (See  Foreclosure  of  mortgage  on  real  estate.) 


ALPHABETICAL    INDEX.  221 

Real  estate — Continued.  section. 

Partition.     (See  Partition.) 
Sale  of  realty  of  decedent.     (See  Executor,  sale  of  estate. 

Receiver: 

Who  may  appoint 184 

When  may  he  appoointed 185 

<  Jeneral  powers 186 

Of  corporation 185  (1),  187,  224,  225 

Obligation  for  damages  on  appointment 188 

Oath  and  obligation  required    189 

Investment  of  funds 1 90 

Termination  of  receivership 191 

Appointed  under  execution 52  2-524 

Record  of  private  writing,  how  proved 331 

Records : 

Shall  be  public 10,  464 

Original,  not  to  be  removed  from  office 346 

(#ee  Judicial  record;  Official  documents,  etc.) 

Referee: 

May  be  agreed  upon  or  appointed 1 28 

Commission  to 129 

Oath  of 130 

Trial  before 131 

Report  of 132 

Hearing  upon  return 133 

In  case  of  execution  returned  unsatisfied 516-519 

Fees  of,  how  taxed 532 

Registrar  of  land  titles: 

Clerk  of  Circuit  Court  shall  act  as 399 

Wills  devising  real  estate  to  be  recorded  in  office  of 659 

Relevancy  of  evidence 313 

Relief: 

What  may  be  granted  plaintiff  in  Circuit  Courts 119 

From  judgment  or  order  taken  on  account  of  mistake,  etc 106 

Renewal  of  right  of  action 49 

Repeal  of  codes,  etc. ,  conflicting  with  this  Code 820 

Reply  of  plaintiff  to  new  matter  in  answer 97 

Representative,  his  death  shall  not  cause  action  to  abate 159 

Reputation: 

As  to  credibility  of  witness 315  (16) 

As  to  facts  of  general  interest,  etc 315  (1 1-13) 

Residuary  legatee,  when  executor 679 

Reversal  of  judgment: 

Not  allowed  on  technical  grounds 540 

(See  Supreme  Court,  appellate  jurisdiction.) 

Roll,  lawyers' 20 

Rules: 

Of  evidence  shall  be  uniform 292 

Of  Supreme  and  Circuit  Courts 6 

Sale: 

Under  execution.     (See  Execution. ) 

Of  real  estate  under  foreclosure  proceedings 255-257 

Of  trust  estate 630 

(See  Guardian;  Executor.) 


222  ALPHABETICAL    INDEX. 

Section. 

Sanity  of  testator,  how  proved 668 

Secondary  evidence  i  »f  contents  of  writing 337,  338 

Several  judgments 118 

Sickness,  last;  payment  of  expenses 764 

Spanish  language,  its  use  in  court 12,  83  (5-8) 

Special  proceedings: 

1 '( iwer  of  judge  in 559 

Appeals  in 802-807 

Specifications,  may  be  required  in  pleadings • 101 

Specific  performance,  form  of  complaint 808  (30) 

Spendthrifts,  their  appearance  in  action 109 

Stamped  paper,  not  required  in  proceedings 7 

Stenographer,  may  be  employed  in  taking  depositions 379 

Stepfather,  adoption  of  child  by 795 

Stockholders  of  corporations,  abatement  of  actions  against 169 

Subpoena: 

Issuance  by  district  judge 61 

Definition  417 

Issuance,  in  general 418 

Service  • 419,  420 

Disobedience 423-425 

Forms 808  (38-39) 

Substitution  of  lawyers 32 

Summons: 

From  district  court 50 

Shall  be  issued  on  filing  of  complaint 405 

For  defendants  residing  in  different  circuits 406 

What  must  c< mtain 407 

When  lost  or  not  served 408 

By  whom  served 409,  410 

To  whom  delivered 409, 411 

Return  of 409 

What  equivalent  to  service 412 

Service  upon  absent  or  unknown  defendants 413,  414 

Proof  of  service 415 

Service  in  actions  affecting  title  to  real  estate 416 

Form 808  (40-41 ) 

Sundays,  excluded  in  computing  time 4 

Supplemental  complaint  or  answer 98 

Supreme  Court: 

Appellate  jurisdiction — 

General  procedure 533 

Hearings  confined  to  matters  of  law,  with  exeepti< >ns 534 

Procedure  on  appeal  from  special  proceedings 535 

Compelling  judge  to  sign  exceptions 536 

Dismissal  of  bill  of  exceptions 537,  539 

Correction  of  incomplete  record 538 

Judgment  not  to  be  reversed  on  technical  grounds 540 

Trial  may  V>e  ordered  before  another  judge , 541 

Procedure  upon  new  trial 542 

Certificate  of  judgment  remitted  to  Circuit  Court 543, 544 

Copy  of  opinion  certified  to  court  below 545 

Excepting  party  not  entitled  to  reversal  as  to  another 546 

Interest  on  judgment  affirmed 547 


ALPHABETICAL    INDEX.  223 

Supreme  Court — Continued.  Section. 

Appellate  jurisdiction — Continned. 

Extraordinary  orders,  when  to  be  enforced  by  lower  court 548 

Bills  of  exceptions  may  be  printed 549 

<  )riginal  jurisdiction — 

Procedure  in  cases  of  default  caused  by  fraud,  etc 550 

In  certiorari 551 ,  554, 555 

Mandamus 552,  554,  555 

Prohibition 553,  554, 555 

Preliminary  injunctions 555 

Expediting  proceedings 555 

Quo  warranto 556 

Surety : 

Includes 1 

May  be  party  to  accounting  of  executor 718 

Of  decedent,  may  present  claim  to  executor 775 

(See  Bond.) 

Survivals  of  persons  dying  in  same  calamity,  presumption  as  to 350  (37) 

Suspension  of  lawyers: 

Causes  for 22 

Continuance  of  trial 22 

Effect  of 22 

Proceedings  upon 23 

Institution  and  cost  of  proceedings 24 

Hearing  of  charges 25 

Tense,  present,  includes  future 1 

Terms  of  writing,  presumed  to  be  in  their  ordinary  sense 307 

Territory  of  the  United  States,  includes  1 

Testimony: 

In  district  courts 56 

{See  Evidence;  Depositions:  Witness.) 
Third  person: 

Right  of,  against  officer  in  case  of  attachment 458 

Claim  of,  on  property  levied  on 507 

Time: 

How  computed 4 

Of  commencing  actions — 

Against  corporations  for  forfeiture  of  charter 227 

Against  officer  to  be  ousted 227 

For  recovery  of  estate  sold  by  guardian 61^ 

(See  Prescription;  Abatement.) 

For  presenting  claims  against  decedent's  estate 722,  723 

When  this  Code  becomes  effective 820 

Title  to  land  by  prescription 40 

Translation '. 12,83  (6-8) 

Trespass  on  land,  form  of  complaint  as  to 808  (23) 

Trial: 

In  district  court 55,  56 

I  n  Circuit  Court — 

Postponement 123 

Adjournment 124 

Order 125 

New.     (See  New  trial.) 

Before  referee 131 


224  ALPHABETICAL    INDEX. 

Trusts  and  trustees:  Section. 

Death  of  trustee  shall  not  cause  abatement 160 

Proceedings  when  trustee  necessary  under  will 618 

Proceedings  upon  death,  resignation,  etc.,  of  trustee 619 

Powers  and  bond  of  new  trustee 620 

Trustee  appointed  abroad 621,  622 

Removal  of  trustee 623 

Resignation  of  trustee 624 

Executor  of  former  trustee  not  bound  to  accept  trust 625 

Bond  and  duties  of  trustee 626,  628,  629 

Inventory  and  appraisement 627 

Sale  of  trust  estate 630 

General  jurisdiction  over  trusts 631 

( 'onveyance  of  lands  held  in  trust  by  decedent  in  his  lifetime 755 

Appeal  from  settlement  of  trustee 803,  804 

United  States: 

Laws,  admissible  as  evidence. 317-319 

Currency,  judgment  made  payable  in 462 

Payment  of  debts  due  from  decedents'  estates 764 

Unsound  mind: 

Includes 1 

Person  of,  appearance  in  action 109 

Witness  disqualified  by 398  (1) 

Transactions  with  persons  of,  when  can  not  be  testified  to 398  (7) 

{See  Guardians  of  persons  of  unsound  mind;  Guardians  ad  litem.) 

Usage,  evidence  of,  to  explain  true  character  of  instrument 315  (12) 

Usurpation  of  office  or  franchise: 

Action  against  a  person  or  association  of  persons  not  incorporated 208 

Action  against  a  corporation 209 

May  be  prosecuted  by  public  officers 210,  211 

May  be  prosecuted  by  individual 212 

Complaint 213 

Who  may  be  made  defendants 214 

Where  actions  may  be  brought 215 

Application  for  leave  to  commence  action  and  notice  to  defendant  .' 216 

Expediting  proceedings 217 

Judgment." 213,  218 

Judgment  where  director  of  corporation  illegally  elected 219 

Rights  of  person  entitled  to  office : 220 

Knforcement  of  judgment 221 

Action  for  damages  against  person  ousted 222 

Judgment  when  corporation  has  forfeited  its  rights 223 

Appointment  of  receiver  when  corporation  dissolved 224 

1  low  receiver  placed  in  possession 225 

Judgment  against  corporation  for  costs 226 

Limitations  as  to  commencing  actions 227 

Concurrent  jurisdiction  of  Supreme  Court 556 

Vacation,  certain  orders  may  be  made  in 241 

Vagrant  children,  adoption  of 799 

Variance 102 

Venue  of  actions 393 

View  of  object  by  court 348 

Widow,  allowance  to.  during  settlement  of  decedent's  estate 719 


ALPHABETICAL    INDEX.  225 

Wife:  Section. 

In  what  cases  can  not  testify 398   (3) 

Not  deprived  of  interest  by  will 649 

Wills: 

Who  may  make 649 

Who  can  not  be  deprived  of  interest  by 649 

Real  estate  acquired  afterwards  may  pass  by  will 650 

Whole  interest  to  pass 651 

Executed  in  accordance  with  law  now  in  effect 652 

Requisites  of 653 

Custody  of 654 

Who  are  competent  witnesses 655 

Subsequent  incompetency  immaterial 656 

When  devise  or  legacy  to  witness  void 657 

Revocation  of 658 

Devising  real  estate,  where  recorded 659 

Allowance  by  court 660 

Custodian  to  deliver 661-664 

Executor  to  present  will 662,  663 

Court  to  appoint  hearing  on 665 

How  proved  when  not  attested 666 

When  witness  does  not  remember  signing 667 

When  witness  does  not  reside  in  Canal  Zone 668 

Grounds  for  disallowing 669 

Made  out  of  Canal  Zone,  may  be  proved  in  Zone 670 

Made  within  Canal  Zone  by  alien,  may  be  proved  in  Zone 671 

Proved  outside  of  Canal  Zone,  allowance  of 672-675 

Share  of  child  born  after  making 784,  786 

Share  of  child  omitted  from 785,  786 

Appeal  in  case  of  allowance  or  disallowance 805 

(See  Executor.) 

Witness: 

Court  may  compel  attendance 11 

Subpoenaed  by  district  judge 61 

Refusal  to  be  sworn  or  to  testify 242 

Evidence  as  to  credibility 315  (16) 

May  refer  to  memorandum 354 

Impeachment 358,  359 

Evidence  as  to  good  character 360 

Oral  testimony 396 

Qualification 397 

Incompetency 398 

May  be  compelled  to  testify  anywhere  in  Canal  Zone 421 

Person  present  in  court  may  be  compelled  to  testify 422 

Compelling  attendance 425 

W  hen  imprisoned,  how  may  be  examined 426 

To  signature  of  testator.      (See  Wills.) 

Fees  allowed 817 

(See  Subpoena;  Evidence;  Depositions.) 

Words,  interpretation  of: 

In  Code 1 

In  instrument  of  writing 307 

Writ,  definition 1 


226  ALPHABETICAL    INDEX. 

Writing:  Section. 

Includes 1 

What  agreements  must  be  in 351 

Contents  of,  how  proved 302 

Interpretation  of 304 

When  may  be  used  as  evidence 315  (14) 

Copy  of,  how  certified  for  use  as  evidence 335 

Proof  of  contents  when  lost 337 

Proof  of  contents  when  in  possession  of  adverse  party 338 

When  need  not  be  offered  in  evidence 339 

Proof  of  execution 340-342 

Of  deceased  person,  prima  facie  evidence 344 

Containing  alteration,  how  used  as  evidence 352 

When  shown  to  witness  may  be  inspected  by  opposite  party 361 

Contained  in  instrument,  controls  printed  portion 308 

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